Borden Company v. Penrose Industries Court Opinion

    No. 87-998

In the Supreme Court
OF THE

United States
October Term, 1987

City of R ichmond,
Appellant,

vs.
J.A. Croson Company,

Appellee.

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

BRIEF OF ALPHA KAPPA ALPHA SORORITY; COALI­
TION FOR CIVIL RIGHTS; COALITION FOR ECONOMIC 
EQUITY; COUNCIL OF ASIAN -AMERICAN BUSINESS 
ASSOCIATION; GOLDEN GATE SECTION OF THE SOCI­
ETY OF WOMEN ENGINEERS; HISPANIC CHAMBER OF 
COMMERCE, SAN FRANCISCO; KAPPA ALPHA PSI FRA­
TERNITY; NATIONAL BAR ASSOCIATION; SAN FRAN­
CISCO BLACK CHAMBER OF COMMERCE; WESTERN 
REGION-NATIONAL ASSOCIATION FOR THE AD­
VANCEMENT OF COLORED PEOPLE (NAACP); AILEEN 
HERNANDEZ ASSOCIATES; AMERICAN PROPERTY 
EXCHANGE; CASA SANCHEZ; CORY GIN, ASSOCIATES; 
INTERSTATE PARKING COMPANY, INC.; JEAN PIERRE 
AND COMPANY; JEFFERSON AND ASSOCIATES; 
McCLAIN AND WOO; NAOMI GRAY ASSOCIATES, INC.; 
PEGASUS ENGINEERING, INC.; SELWYN WHITEHEAD 
ENTERPRISES AS AMICI CURIAE IN SUPPORT OF 
APPELLANT.

B OW NE O F  SAN FR AN CISCO . INC. • 190 NINTH S T . • S .F ., C A  9 41 0 3  • ( 4 1 5 )  8 6 4 -2 3 0 0



(Inside Front Cover)

Eva Jefferson Paterson* 
San Francisco Lawyers’ 
Committee For 
Urban Affairs 

301 Mission Street,
Suite 400
San Francisco, CA 94105 
(415) 543-9444

Robert L. Harris 
Charles Houston Bar 
Association 

77 Beale Street 
P.O. Box 7442 
San Francisco, CA 94120 
(415) 972-6651

Judith Kurtz 
Shauna Marshall 
Equal Rights Advocates 

1370 Mission Street 
4th Floor
San Francisco, CA 94103 
(415) 621-0505

Edwin M. Lee 
William Tamayo 
Asian Law Caucus 

36 Waverly Place, Suite 2 
San Francisco, CA 94108 
(415) 391-1655/835-1474

William C. McNeill, III 
Employment Law Center 

1663 Mission Street 
San Francisco, CA 94103 
(415) 864-8848

Al Borvice 
Hispanic Chamber of 
Commerce 

648 Mission Street 
San Francisco, CA 94105 
(415) 543-3940

Nathaniel Colley 
Western Region-NAACP 

1810 “S” Street 
Sacramento, CA 95814 
(916) 446-7584

Attorneys for AMICI 
* Attorney o f Record



TABLE OF CONTENTS
Page

Consent for Filing..........................  .........................................  2

Interest of the Amici ................................................................  2

Summary of A rgum ent............................................................ 6

Argument..................................................................................... 8

I

Municipalities Have a Compelling Interest in Implementing 
Affirmative Action Programs to Remedy the Present Effects 
of Past Discrimination..............................................................  8

A. Richmond had a compelling interest for enacting its
ordinance........................................................................  8

B. San Francisco, as well as other cities around the
nation, has a compelling interest in implementing 
voluntary affirmative action progam s..........................  9
1. San Francisco’s ordinance which requires affirm­

ative action in city contracting will be severely 
impaired unless the decision below is reversed. . 9

2. The operation of the San Francisco ordinance has
demonstrated that affirmative action programs 
can and do, remedy the effects of past discrimina­
tion ..........................................................................  11

C. Affirmative action programs are designed to reduce
the unfair advantage nonminority firms enjoy because 
of the exclusion of minority firms from contracting 
opporutnities..................................................................  13

II
The Fourth Circuit’s Decision Would Force Municipalities 
to Perpetuate Rather Than Remedy the Present Effects of 
Past Discrimination ..................................................................  14

A. Wygant v. Jackson does not require a city to perpetu­
ate the present effects of past discrimination ............ 14

B. Public policy is not served by forcing muncipalities to
either prove or admit past discrimination before vol­
untarily instituting an affirmative action program . . .  15

Conclusion........ .......................................................................... 16



11

TABLE OF AUTHORITIES CITED

Cases
Page

Associated General Contractors v. City and County of San 
Francisco, 619 F. Supp. (334 N.D. Cal.1985) ................ 2, 10

Associated General Contractors v. City and County of San 
Francisco, 813 F 2d 922 (9th Cir. 1987) .........................2, 10

Brown v. Board of Education, 347 U.S. 483 (1954) ______ 7
Croson v. City of Richmond, 822 F.2d 1355 (4th 

Cir. 1987) ............................................................ ............6 ,7 ,14

Fullilove v. Klutznick, 448 U.S. 448 (1980)...................8, 13, 14
Johnson v. Transportation Agency, Santa Clara County, 

____ U.S--------- , 107 S. Ct. 1442 (1987)........ .. 12
McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950) 7
Morgan v. Virginia, 328 U.S. 373 (1946) .............................  7
Sweatt v. Painter, 339 U.S. 629 (1950) . ................... .. 7
United States v. Paradise,____ U .S ._____ , 107 S.Ct. 1053

(1987) ...................................... ............ .............................. ..9 , 12
University of California Regents v. Bakke, 438 U.S. 265 

(1 9 7 8 )..................................... .............. .......................... .. 7

Wygant v. Jackson Board of Education 476 U.S. 267 
(1 9 8 6 )................................. ................ .............. .9, 10, 11, 14, 15

Other Authorities
Bell, And We Are Not Saved: The Elusive Quest for Racial 

Justice (1987)..........      7

Contracting Participation Report F Y  1984-1985 And F Y  
1985-1986, Human Rights Commission of San Francisco 
(1 9 8 7 ).....................................................    11

S.F. Ord. 139-84, Ch. 12D, § 12 D 2 .....................................  10
S. Rep. No. 92-415, p. 10 (1971) .........................................  16
U.S. Supreme Court Rule 36.2...............................................  1



No. 87-998

In the Supreme Court
OF THE

United States
October Term, 1987

C ity of Richmond,
Appellant,

v.
J.A. Croson Company,

Appellee.

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

BRIEF OF ALPHA KAPPA ALPHA SORORITY; COALI­
TION FOR CIVIL RIGHTS; COALITION FOR ECONOMIC 
EQUITY; COUNCIL OF ASIAN-AMERICAN BUSINESS 
ASSOCIATION; GOLDEN GATE SECTION OF THE SOCI­
ETY OF WOMEN ENGINEERS; HISPANIC CHAMBER OF 
COMMERCE, SAN FRANCISCO; KAPPA ALPHA PSI FRA­
TERNITY; NATIONAL BAR ASSOCIATION; SAN FRAN­
CISCO BLACK CHAMBER OF COMMERCE; WESTERN 
REGION-NATIONAL ASSOCIATION FOR THE AD­
VANCEMENT OF COLORED PEOPLE (NAACP); AILEEN 
HERNANDEZ ASSOCIATES; AMERICAN PROPERTY 
EXCHANGE; CASA SANCHEZ; CORY GIN, ASSOCIATES; 
INTERSTATE PARKING COMPANY, INC.; JEAN PIERRE 
AND COMPANY; JEFFERSON AND ASSOCIATES; 
McCLAIN AND WOO; NAOMI GRAY ASSOCIATES, INC.; 
PEGASUS ENGINEERING, INC.; SELWYN WHITEHEAD 
ENTERPRISES AS AMICI CURIAE IN SUPPORT OF 
APPELLANT.



2

CONSENT FOR FILING

This Amici Curiae brief is being filed with the consent of the 
parties. Their letters of consent have been filed with the Clerk of 
the Court pursuant to Rule 36.2 of the Rules of this Court.

INTEREST OF THE AMICI

The common theme linking all Amici in this brief is a commit­
ment to ensuring that the historical lock by white male contrac­
tors on receipt of contracts from municipalities throughout this 
nation be broken so that minority and women businesses can 
share in the economic benefits of these contracts which amount to 
billions of dollars annually.

The Amici from the San Francisco Bay Area have an especially 
critical concern for the outcome of this case. For the final 
analysis, the Court’s decision here will probably announce princi­
ples which will determine the validity of a similar ordinance 
adopted by San Francisco which is currently pending before the 
Ninth Circuit Court of Appeals.

In 1984, the Board of Supervisors of San Francisco, by a 10 to 
1 vote, enacted a comprehensive ordinance aimed at rectifying the 
discrimination and under-representation of minority business en­
terprises (MBE’s) and women owned business enterprises 
(WBE’s). San Francisco’s ordinance was enacted after extensive 
testimony revealed that despite the fact that approximately 40% 
of the businesses in the Bay Area are owned by women and 
minorities, only 2.87% of the city’s contracting dollars were 
awarded to MBE’s and WBE’s. As soon as San Francisco adopted 
its remedial ordinance, the Associated General Contractors sued 
to enjoin its implementation (.Associated General Contractors v. 
City and County o f San Francisco, 619 F. Supp. 334 (N.D. 
Cal. 1985).)

The San Francisco ordinance, which is awaiting a decision on a 
motion for rehearing and suggestion for rehearing en banc, (Asso­
ciated General Contractors v. City and County o f San Francisco, 
813 F. 2d 922 (9th Cir. 1987)) has been in litigation for the past 
4 years and its fate in all likelihood will be determined by the



3

Court’s decision in the instant action. Minority and female 
vendors, as the real parties in interest in any litigation involving 
race and gender conscious government contractings, have the 
unique vantage point possessed by MBE’s and WBE’s which 
should be taken into account when the Court decides these 
admittedly thorny issues of grave constitutional import. Since the 
primary legal support for race and gender conscious programs 
enacted to end discrimination will come from the very govern­
mental agencies which have for years excluded people of color 
and women from contracting opportunities through overt and 
institutional discrimination, the Amici who have suffered years of 
discrimination and under-representation in receiving contracts 
from municipalities, believe it is critical that the Court consider 
their views in this matter.

Many of the Amici herein represent San Francisco’s rich ethnic 
diversity. Women, Asians, Hispanics, Blacks and whites, who are 
committed to the full desegregation of society, join together to 
urge this Court to reverse the opinion of the Fourth Circuit.

Finally, many of the Amici in this action are minority and 
women owned businesses who currently contract with the City 
and County of San Francisco, California. The other Amici are 
civil rights and service organizations which have a keen interest in 
the preservation and extension of race and gender conscious 
programs designed to remedy past discrimination and the under­
representation of minorities and women in the award of govern­
ment contracts. Specifically the Amici and their interests are as 
follows:

Membership Organizations

Alpha Kappa Alpha Sorority, Inc. is a national Greek-lettered 
organization which is comprised of over 100,000 members in 
more than 725 undergraduate and graduate chapters. In 1908, the 
Sorority became the country’s first Greek-lettered organization 
which was established by and for Black women. Since its incorpo­
ration in 1913, the Sorority has developed into a vehicle by which 
Black college-trained women have improved and impacted upon 
the social and economic conditions in their respective cities and



4

states. This influence has stretched to molding policies of this 
nation and the world, thereby carrying out the Sorority’s current 
theme of “Service with a Global Perspective”. The affirmance of 
the opinion below would effect an erosion of the principles 
developed by Fullilove and would place a heavy burden upon, and 
effectively chill, a municipality from enacting voluntary affirma­
tive action programs.

The Coalition for Civil Rights is a multi-racial organization 
based in San Francisco. Comprised of twenty-six (26) organiza­
tions representing women, Blacks, Hispanics, Asians, and whites, 
the Coalition fights to fully desegregate all areas of society 
including business and contracting.

The Coalition for Economic Equity is an organization com­
prised of whites, Blacks, Hispanics, Asians, men, and women who 
are committed to increasing the percentage of contracting dollars 
awarded to minority and women owned businesses in San Fran­
cisco, The Coalition was active in gaining passage of a minority 
and women enterprises ordinance in the City and County of San 
Francisco in 1984.

The Council of Asian American Business Association consists 
of four trade associations: Asian American Architects and Engi­
neers, Asian Business Association, Association of Asian Certified 
Public Accountants and the United Asian Contractors Associa­
tion totalling approximately 300 firms located in the San Fran­
cisco Bay Area. The goal of the Association is to promote 
business opportunities for Asian American entrepreneurs.

The Golden Gate Section of the Society of Women Engineers, 
founded in 1949, is the local chapter of the National Society of 
Women Engineers. The local chapter is 15 years old and has a 
membership of over 100 women. The purpose of the organization 
is to counsel and encourage women to enter the engineering 
profession.

The Hispanic Chamber of Commerce is a membership organi­
zation comprised of businesses located in San Francisco. The 
chamber reflects the make-up of the Hispanic community.



5

Kappa Alpha Psi Fraternity is an organization of some 80,000 
Black men concerned with all aspects of minority affairs in this 
country. Long active in struggles aimed at improving the lot, 
economic and otherwise, of Black Americans, Kappa Alpha Psi 
believes that the future of minority contracting programs, which 
have been instituted by a number of municipalities around the 
nation, is directly imperiled by the decision of the Fourth Circuit 
Court of Appeals.

The National Bar Association, founded in 1925, is a profes­
sional membership organization which represents more than 
12,000 Black attorneys, judges and law students in the United 
States. Its purposes include achieving equal opportunities for 
minorities in the legal profession and protecting the civil and 
political rights of all citizens. The Association has a particular 
interest in this case because of its belief in the importance of 
affirmative action as a means of solving America’s racial 
problems.

The San Francisco Black Chamber of Commerce is an organi­
zation of over 100 businesses and individuals devoted to the 
development and advancement of Black entrepreneurs: It has 
sought to increase opportunities for minority-owned firms and 
supported the passage of the city ordinance to eliminate under­
representation of minority firms in business contracting with the 
city.

The Western Region of the National Association for the 
Advancement of Colored People (NAACP), is the regional 
administrative headquarters of the NAACP. The NAACP, the 
oldest civil rights organization in the United States, believes that 
affirmative action programs are essential means of redressing 
discrimination against people of color by both private and public 
entities.

Private Businesses

Aileen Hernandez Associates is a consulting firm owned and 
operated by Black women. The types of services it provides to the 
City and County of San Francisco include research, training and



6

development techniques for public participation and public 
relations.

American Property Exchange is a real estate investment firm in 
San Francisco which is owned by a white woman.

Casa Sanchez is an Hispanic owned food manufacturing com­
pany located in San Francisco.

Cory Gin Associates is an Asian-owned architectural/design 
firm located in San Francisco.

Interstate Parking Company, Inc. is a Black-owned San Fran­
cisco business that has contracted with the city for parking 
concessions and is a registered Minority Business Enterprise.

Jean Pierre & Co. is a Black-owned certified public account­
ancy firm that has done business with the city and is a registered 
Minority Business Enterprise in San Francisco.

Jefferson Associates is a Black-owned development, planning 
and architectural firm which contracts with the city. It is a 
registered Minority Business Enterprise in San Francisco.

McClain and Woo, CPA, is an Asian auditing firm located in 
San Francisco.

Naomi Gray Associates, Inc. is a consulting firm owned and 
operated by a Black woman. The services provided include 
management and health related issues.

Pegasus Engineering, Inc. is a structural engineering consulting 
firm owned and operated by a white woman.

Selwyn Whitehead Enterprises is a business owned by a Black 
woman which designs computer networks, training programs in 
telephony and sells date communications hardware.

SUMMARY OF ARGUMENT

The decision of the Fourth Circuit that Richmond’s ordinance, 
“prefers some, and in so doing diminishes the rights of all” 
(Croson v. City o f Richmond, 822 F.2d 1355, 1362 (4th Cir. 
1987) decimates the endeavors of numerous cities across this 
nation to eradicate the present effects of prior discrimination.



7

Today, the inability of minorities to compete with white con­
tractors for municipal contracts is the tragic, but inevitable result 
of years of their unequal treatment and actual exclusion from the 
contracting process. Not only have minorities been excluded by 
government officials, but also by white male firms who now seek 
to protect the huge benefits they have reaped as a result of that 
exclusion. Although the Fourth Circuit contends that the “record 
of prior discrimination supporting the Richmond plan is deficient” 
(822 F.2d at 1360), the inescapable fact is that until the middle 
of the 20th century, segregation of Blacks was enforced by law. 
(See, Brown v. Board o f Education, 347 U.S. 483 (1954); see 
also, Bell, And We Are Not Saved: The Elusive Quest fo r Racial 
Justice (1987).)

While Blacks were prevented from participating in the eco­
nomic prosperity of this nation, white contractors were given a 
virtual monopoly on government contracts. As Blacks fought 
desperately to emerge from legally sanctioned segregation (see, 
e.g., Morgan v. Virginia, 328 U.S. 373 (1946); Sweatt v. Painter, 
339 U.S. 629 (1950); McLaurin v. Oklahoma State Regents, 339 
U.S. 637 (1950)), white contractors were steadily building their 
firms with government contracts thereby cementing their hold on 
those contracts. By the time legal segregation of Blacks ended, 
white contractors had firmly established their monopoly on gov­
ernment contracts.

This Court, as it struggles to fashion an analysis of affirmative 
action programs, under the Equal Protection Clause, should not, 
and indeed cannot, ignore “the sorry history of discrimination and 
its devastating impact on the lives of [Blacks].” ( University o f  
California Regents v. Bakke, 438 U.S. 265, 396 (1978), Marshall 
J., dissenting). Moreover, it must also remember “that the 
Fourteenth Amendment was not intended to prohibit measures 
designed to remedy the effects of the Nation’s past treatment of 
[Blacks].” (Id. at 396-397).

The record below substantiates that the Richmond City Coun­
cil had ample evidence of the virtual exclusion of Blacks and 
others from receiving city contracts. Moreover, not only was the 
City Council aware of the City’s history of prior discrimination, 
but it was equally mindful of its responsibility to take affirmative



steps to remedy the devastating effects of that discrimination. 
Thus, contrary to the opinion of the Fourth Circuit, the Four­
teenth Amendment commands, rather than condemns, Rich­
mond’s affirmative steps to remedy the exclusion of minorities 
and others from city contracting.

ARGUMENT

I

MUNICIPALITIES HAVE A COMPELLING INTEREST
IN IMPLEMENTING AFFIRMATIVE ACTION PRO­
GRAMS TO REMEDY THE PRESENT EFFECTS OF
PAST DISCRIMINATION

A. Richmond had a compelling interest for enacting its 
ordinance

The existence of discrimination in Richmond’s construction 
industry was carefully considered by the City Council. The City 
Council determined that the present effects of prior discrimina­
tion were so egregious and pervasive that remedial governmental 
action was necessary to reverse the virtual exclusion of minorities 
from receiving city contracts. Aware that traditional contracting 
procedures would not correct the problem, the City Council 
concluded, as this Court concluded in Fullilove v. Klutznick, 448 
U.S. 448, 478 (1980), “That traditional procurement practices, 
when applied to minorities’ businesses, could perpetuate the 
effects of prior discrimination.” Accordingly, Richmond, ac­
knowledging that continued reliance upon traditional procure­
ment practices would not remedy the undisputed fact that white- 
owned firms receive 99 percent of the City’s construction busi­
ness, took affirmative measures to correct this unfair advantage 
enjoyed by white firms.

In 1983, one-half of the population of Richmond was Black, 
but in the five years prior to 1983 less than one percent of the 
City’s $124 million in construction contracts was awarded to 
minority-owned businesses. These facts, inter alia, convinced 
both the City Council and the district court that the exclusion of 
minorities from city construction contracts was due to racial



9

discrimination in the construction industry. Thus, race conscious 
affirmative action programs are appropriate to eradicate the 
effects of such discrimination. As Justice Powell astutely observed 
in Wygant v. Jackson Board o f Education, 476 U.S. 267, 280-281 
(1986) “in order to remedy the effects of prior discrimination, it 
may be necessary to take race into account. As part of this 
Nation’s dedication to eradicating racial discrimination, innocent 
persons may be called upon to bear some of the burden of the 
remedy.” Wygant, a plurality opinion, involved a challenge to a 
preferential layoff provision in a collective bargaining agreement 
for school teachers.

The remedy selected by Richmond, similar to that selected by 
other cities, is designed only to eliminate the present effects of 
practices that have developed over many years of awarding 
contracts which have excluded minority firms, while favoring 
white firms. Using race conscious efforts to remedy such prior 
discriminatory practices, does not violate the Equal Protection
Clause. For this Court, in United States v. Paradise,____U.S.
------, 107 S.Ct. 1053, 1064 (1987), which upheld race conscious
relief where there was a history of discrimination, recognized that: 
“It is now well established that government bodies. . . .  may 
constitutionally employ racial classifications essential to remedy 
unlawful treatment of racial or ethnic groups subject to discrimi­
nation”. This is precisely what Richmond did to correct past 
racial discrimination which allowed white firms to receive 99 
percent of Richmond’s construction contracts. Richmond’s inter­
est in remedying this injustice was not only compelling, but 
essential in order to maintain the integrity of the City’s con­
tracting process.

B. San Francisco, as well as other cities around the nation, 
has a compelling interest in implementing voluntary af­
firmative action programs

1. San Francisco’s ordinance which requires affirmative 
action in city contracting will be severely impaired 
unless the decision below is reversed

On April 2, 1984, San Francisco enacted the Minor- 
ity/Women/Local Business Utilization ordinance. This ordinance



10

was the culmination of a long effort to increase the participation 
of minority and women business enterprises in municipal con­
tracting. It was indeed a voluntary effort by San Francisco to 
remedy the present effects of past discrimination against such 
businesses.

The ordinance was enacted after months of public hearings 
where numerous people testified and presented written evidence 
regarding their inability to secure city contracts. After the public 
hearings, San Francisco, in enacting the ordinance, made the 
following findings:

1. “That historic discrimination against minorities and 
women, often officially sanctioned and enforced by govern­
ment from the inception of our Republic to the present had a 
serious, negative impact on their ability to participate fully 
and adequately in our society; and

2. That because of centuries of limited access to the 
marketplace—as workers and as entrepreneurs—and because 
of the failure of local governmental agencies to take affirma­
tive steps to remedy overt and subtle discrimination, women 
and minorities have suffered severe economic harm;” (S.F. 
Ord. 139-84, Ch. 12D, § 12 D2.)

Immediately, after the enactment of said ordinance, white 
contractors who, just as in the case at bar, had been the recipients 
of substantially all of San Francisco’s contracts, challenged the 
validity of the ordinance. (See, Associated General Contractors v. 
City and County o f San Francisco, 619 F. Supp. 334 (N.D. Cal. 
1985).) The trial court upheld the ordinance, but on appeal a 
three-judge panel of the Ninth Circuit reversed, in part, holding 
that the race conscious aspects of the ordinance were violative of 
the Equal Protection Clause. (See, Associated General Contrac­
tors v. City and County o f San Francisco, 813 F. 2d 922 (9th Cir. 
1987).) A petition for rehearing with suggestion that it be en banc 
has been pending in the Ninth Circuit since June 1987, and the 
ordinance has remained in effect pending the outcome of said 
petition.

The Ninth Circuit, similar to the Fourth Circuit in the instant 
case, incorrectly relied upon Wygant v. Jackson Board o f Educa­



11

tion, supra, 476 U.S. 267 to invalidate the race conscious aspects 
of the ordinance. As will be discussed later, Wygant does not 
support the conclusions of either the Fourth or the Ninth Circuit 
Courts of Appeals. But, prior to discussing Wygant, it is important 
to discuss the effectiveness of, and necessity for, affirmative action 
programs such as the ones adopted by Richmond and San 
Francisco.

2. The operation of the San Francisco ordinance has 
demonstrated that affirmative action programs can and 
do, remedy the effects of past discrimination

Affirmative action programs, like that embodied in the San 
Francisco ordinance, are not only necessary to remedy past 
discrimination, but if implemented correctly can actually decrease 
discrimination and increase the participation of minorities and 
women in the economic dream of this Nation. For example, when 
San Francisco commenced implementing its ordinance in 1984, 
minorities were receiving only 2.87 percent of the total contract 
dollars awarded by San Francisco. As a result of the ordinance, by 
1986, that participation had climbed to 25.4 percent of the total 
contract dollars.1

Prior to implementing the ordinance, only 130 firms which 
qualified in 1983 as minority or women-owned businesses, were 
doing business with San Francisco. Because of the affirmative 
action endeavors of San Francisco, by 1986, 1562 such firms were 
receiving contracts from the city.2 These firms are now gaining 
the necessary experience and capital to compete successfully with 
white firms for city contracts when the ordinance expires in 1989.

One fear commonly held by those who either oppose affirma­
tive action or who are uncomfortable with its implications and 
implementation is that unqualified members of protected classes 
will be foisted upon entities which enforce affirmative action

1 See, Contracting Participation Report FY 1984-1985 And FY 1985- 
1986, Human Rights Commission of San Francisco (1987). Copies 
have been forwarded by Amici to the Clerk of the United States 
Supreme Court.

2 Id at p.4.



12

programs. Another fear that exists is that affirmative action 
programs, particularly in the contracting area, will result in 
increased costs to municipalities which are already strapped for 
working capital. Nothing could be farther from the truth.

In San Francisco, during the 4 years that the ordinance has 
been in effect, these fears have failed to materialize. When no 
qualified MBE’s nor WBE’s exist to fulfill a contract, the San 
Francisco Human Rights Commission has granted a waiver. 
Between 1984 and 1986, waivers were granted 78 times. With 
regard to the fear of increased costs, ordinances such as that of 
San Francisco have actually resulted in savings of millions of 
dollars to municipalities. These savings result from the increased 
competitiveness which follows the presence of additional contrac­
tors doing business with the City. White male contractors now 
underbid their own historically acceptable bid levels as their way 
of factoring in the presence of MBE’s and WBE’s. Even when 
waivers are granted due to the lack of qualified MBE’s and 
WBE’s, contract bids are lower simply due to the presence and 
potential bids of MBE’s and WBE’s. Finally, it should be specifi­
cally noted that contrary to the fears of white contractors, they 
have not been impacted substantially by the enforcement of the 
San Francisco ordinance. In fiscal year 1985-86, they were 
awarded 74.6 percent of the contracting dollars expended by San 
Francisco.

In practice, the ordinance has provided a remedial shield for 
minorities giving them an opportunity to compete with white 
firms, while at the same time protecting the rights of white firms 
to continue to receive substantial contracting dollars from San 
Francisco. Accordingly, the reasonable expectations of white 
contractors have not been frustrated. (See e.g., Johnson v. Trans­
portation Agency, Santa Clara County,____U .S ._____, 107 S.
Ct. 1442, 1455 (1987). It is thus clear, as shown by the San 
Francisco experience, that affirmative action ordinances can, and 
do, remedy past discrimination while not unduly trammeling the 
rights of innocent white male firms. Hence, they do not offend the
Equal Protection Clause. (See, United States v. Paradise,____
U .S .____, 107 S.Ct. 1053, 1064 (1987).



13

C. Affirmative action programs are designed to reduce the 
unfair advantage nonminority firms enjoy because of the 
exclusion of minority firms from contracting 
opportunities

The clear objective of government affirmative action programs 
is to provide an opportunity for minority firms to compete with 
white firms on an equal footing. To achieve this equality, it is, of 
course, necessary to institute programs which may occasionally 
require white firms to share their monopoly on public contracting 
with heretofore excluded minorities. Municipalities, such as Rich­
mond and San Francisco, recognize, as has this Court, that “in 
the past some nonminority businesses may have reaped competi­
tive benefit over the years from the virtual exclusion of minority 
firms from these contracting opportunities.” (Fullilove v. Klutz- 
nick, supra, 448 U.S. at 485). This Court, in Fullilove, correctly 
observed:

It must be conceded that by its objective of remedying the 
historical impairment of access, the MBE provision can have 
the effect of awarding some contracts to MBE’s which 
otherwise might be awarded to other businesses, who may 
themselves be innocent of any prior discriminatory actions. 
Failure of nonminority firms to receive certain contracts is, of 
course, an incidental consequence of the program, not part of 
its objective; similarly, past impairment of minority-firm 
access to public contracting opportunities may have been an 
incidental consequence of ‘business as usual’ by public con­
tracting agencies and among prime contractors.” (Id. at 
484.)

Thus, Richmond and San Francisco, as well as other cities who 
are concerned with divesting white firms of the “competitive 
benefits” of years of “virtual exclusion of minority firms from . . .  
contracting opportunities” (Fullilove v. Klutznick, supra, 448 
U.S. at 485), have a compelling interest in instituting remedial 
programs to place heretofore excluded minorities “on a more 
equitable footing with respect to public contracting opportuni­
ties.” (Id. at 484.) Hence, the underlying principles announced in 
Fullilove are still sound today, and they should indeed apply 
equally to this case. This is especially true where local govern­



14

ments, following the example set by Congress, try to remedy years 
of exclusion of minorities from participating in lucrative contracts 
awarded by such governmental entities.

II

THE FOURTH CIRCUIT’S DECISION WOULD FORCE 
MUNICIPALITIES TO PERPETUATE RATHER THAN 
REMEDY THE PRESENT EFFECTS OF PAST 
DISCRIMINATION

A. Wygant v. Jackson does not require a city to perpetuate 
the present effects of past discrimination

By holding that Richmond was required to demonstrate or 
admit its own prior discrimination, the Fourth Circuit embarked 
upon a journey which inevitably leads to a freezing of the status 
quo. (Croson v. City o f Richmond, 822 F.2d 1355 (4th Cir. 
1987). By freezing the status quo, as done by the Fourth Circuit, 
the present effects of past discrimination will remain permanently 
embedded in the contracting process of not only Richmond, but 
also in countless other municipalities throughout the nation. The 
Fourth Circuit’s reliance upon Wygant v. Jackson, supra, for this 
proposition is wholly misplaced. Wygant requires no such conclu­
sion. At most, Wygant says, that: “Societal discrimination, with­
out more, is too amorphous a basis for imposing a racially 
classified remedy.” {Id. at 276.) But, Wygant explained that:

In particular, a public employer. .. must ensure that before 
it embarks on an affirmative action program, it has convinc­
ing evidence 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.)

Richmond had before it statistics showing that 99 percent of its 
$124 million construction contract awards were going to white- 
owned firms. There was ample other evidence to convince the 
City Council that these white owned firms were receiving this 
“competitive benefit” because of years of “virtual exclusion of 
minority firms from .. . contracting opportunities.” (Fullilove v. 
Klutznick supra, 448 U.S. 485.) Thus, the Wygant test was met



15

and the evidence was not only convincing, but clearly supported 
the need for Richmond to take remedial action.

B. Public policy is not served by forcing municipalities to 
either prove or admit past discrimination before volunta­
rily instituting an affirmative action program

The Fourth Circuit puts cities such as Richmond in the 
dilemma that Justice O’Connor discussed in her concurring 
opinion in Wygant. Recognizing that no municipality, which has 
legal counsel, is likely to admit prior discrimination, Justice 
O’Connor explained how the Fourth Circuit’s decision can frus­
trate sound public policy which favors the voluntary adoption of 
affirmative action programs:

The imposition of a requirement that public employers make 
findings that they have engaged in illegal discrimination 
before they engage in affirmative action programs would 
severely undermine public employers’ incentive to meet 
voluntarily their civil rights obligations. ( Wygant v. Jackson, 
supra, 476 U.S. at 290, (O’Connor, J., concurring).)

Remedying, not pertpetuating the present effects of past dis­
crimination, as would be required if the Fourth Circuit’s decision 
is upheld, is the ultimate goal of affirmative action programs such 
as those voluntarily instituted by Richmond, San Francisco and 
other cities. This point is critical because, as Justice O’Connor 
notes in her concurring opinion in Wygant:

The value of voluntary compliance is doubly important when 
it is a public employer that acts, both because of the example 
its voluntary assumption of responsibility sets and because 
the remediation of governmental discrimination is of unique 
importance. (Id.)

Thus, the Fourth Circuit’s decision militates against voluntary 
affirmative action. Unless reversed, the decision below will en­
courage municipalities to protect themselves against exposure to 
litigation by refusing to voluntarily remedy past discrimination for 
fear of having to admit prior discrimination. Such a result is not 
only undesirable, but would virtually assure the continued exclu­
sion of minorities and women from effective participation in



16

government contracting opportunities. In the final analysis such a 
result would promote “ignorance of minority problems in [the] 
community, [and would] create[] mistrust, alienation, and all too 
often hostility toward the entire process of government.” {Id. at 
290 quoting) S. Rep. No. 92-415, p. 10 (1971).)

CONCLUSION

For the above reasons, Amici Curiae respectfully urge this 
Court to reverse the decision of the United States Court of 
Appeals for the Fourth Circuit.

Dated: April 21, 1988

Respectfully submitted,

Eva Jefferson Paterson 
Attorney of Record 
Robert L. Harris 
Judith Kurtz 
Shauna Marshall 
Edwin Lee 
W illiam Tamayo 
W illiam C. McN eill, III 
Al Borvice 
N athaniel Colley



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