Richmond v JA Croson Company Jurisdictional Statement

    No.

I n  T h e

B>ujrmttr (tart at %  Inttrb
October Teem, 1987

Cit y  of R ic h 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

JURISDICTIONAL STATEMENT

John Payton *
Mark S. Hersh 
Peter L. Kah n  

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

Drew St . J. Carneal 
City Attorney

M ichael L. Sarahan  
Assistant City Attorney

M ichael 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

December 17,1987

W il s o n  - Ep e s  P r in t in g  C o . ,  In c . -  789-0096 - W a s h in g t o n , D.C. 20001



QUESTIONS PRESENTED
1. Whether a city, in order to remedy the virtual 

absence of minority participation in its city construction 
contracts caused by racial discrimination in its construc­
tion industry, may enact an ordinance that requires 
prime construction contractors to subcontract a portion 
of their city contracts to minority businesses.

2. Whether a city, in order to adopt a minority sub­
contracting requirement for city contracts, must admit 
or concede its own discrimination against minority con­
tractors.

(i)





Page
QUESTIONS PRESENTED ..................    i
OPINIONS BELOW.........................................................  1
JURISDICTION................................................. ...............  2
CONSTITUTIONAL PROVISION AND ORDINANCE 

INVOLVED ...................................................................  2
STATEMENT OF THE CASE ....... ................... ...........  3

A. The Minority Business Utilization Plan_______  3
B. The plan applied to Croson.................................  5
C. The proceedings below ...........................................  6

THE QUESTIONS ARE SUBSTANTIAL ..........    9
I. THE FOURTH CIRCUIT’S INTERPRETA­

TION OF WYGANT THREATENS THE VIA­
BILITY OF MINORITY CONTRACTING PRO­
GRAMS ACROSS THE COUNTRY......... .........  10

II. THE FOURTH CIRCUIT’S CONSTITU­
TIONAL ANALYSIS OF THE RICHMOND 
PLAN WAS MORE STRINGENT THAN 
WYGANT REQUIRES________    15

CONCLUSION ...................... __....................................... . 20
APPENDICES

Appendix A : Second Opinion and Judgment of
the Court of Appeals________  la

Appendix B : Denial of Petition for Rehearing
With Suggestion for Rehearing En 
Banc ..........................      27a

Appendix C: Notice of Appeal ............. ..... .........  29a
Appendix D : Supreme Court Order Granting

Certiorari, Vacating the First Opin­
ion and Judgment of the Court of 
Appeals, and Remanding to the 
Court of Appeals.......... ........  31a

TABLE OF CONTENTS

(iii)



iv

Page
SUPPLEMENTAL APPENDICES 

(Separately Bound)
Appendix E : First Opinion and Judgment of the

Court of Appeals ............................. 1
Appendix F : Order of the District Court ...........  110
Appendix G : Memorandum of the District

Court ................................................  112

TABLE OF CONTENTS—Continued

Appendix H: Ordinance Creating Minority Busi­
ness Utilization Plan...... ..... .......... 233



V

TABLE OF AUTHORITIES
Cases Page

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

Bradley v. School Board, 462 F.2d 1058 (4th Cir.
1972) (en banc), aff’d by an equally divided
Court, 412 U.S. 92 (1973) (per curiam)......... . 11

City of Renton v. Playtime Theatres, 475 U.S. 41
(1986) .....      12

City of Richmond v. United States, 422 U.S. 358
(1975) .... .................... ........... ........ ............ .........  l l

Fullilove v. Klutznick, 448 U.S. 448 (1980)___  passim
International Brotherhood of Teamsters v. United

States, 431 U.S. 324 (1977) ............... ........ .........  18
J. Edinger & Son v. City of Louisville, 802 F.2d

213 (6th Cir. 1986) ......... ..... ...................... ........  10
Johnson v. Transportation Agency, Santa Clara

County, 107 S.Ct. 1442 (1987)....... .......... .........  16
Michigan Road Builders Association v. Milliken,

No. 86-1239 (6th Cir. Nov. 25, 1987) ....... ........ . 9,15
Ohio Contractors Association v. Keip, 713 F.2d 167

(6th Cir. 1983) ......................... .................... .........  12
Regents of the University of California v. Bakke,

438 U.S. 265 (1978) ......... .....................................  7
Schmidt v. Oakland Unified School District, 662 

F.2d 550 (9th Cir. 1981), vacated on other
grounds, 457 U.S. 594 (1982)........ ........ ..... ......  12

South Florida Chapter of the Associated General 
Contractors of America v. Metropolitan Dade 
County, Fla., 723 F.2d 846 (11th Cir.), cert.
denied, 469 U.S. 871 (1984) ......... ...... ................  7,12

United Steelworkers of America v. Weber, 443 U.S.
193 (1979) .......... ..... ............. ............ ...... ..........  11,16

United States v. Paradise, 107 S.Ct. 1053 (1987).... 13,18,
19

Wygant v. Jackson Board of Education, 106 S.Ct.
1842 (1986)........ ........ ........... ............ ................. passim



vi

TABLE OF AUTHORITIES—Continued

Constitutional Provisions, Statutes and Ordinances Page
U.S. Const, amend. X IV ............
28 U.S.C. § 1254(2) (1982)......
42 U.S.C. § 6705(f) (2) (1982).................................  10
Minority Business Utilization Plan, codified at 

Richmond, Va. Code ch. 24.1, art. 1(F) (Part B) 
1127.10-27.20, art. VIII-A (1983) ........................ 2,5

Other Authorities
Sullivan, Sins of Discrimination: Last Term’s A f­

firmative Action Cases, 100 Harv. L. Rev. 78
(1986) .....................................................................  17

United States Conference of Mayors and United 
States Department of Commerce, 1986 National 
City Profiles: Re-port on Minority Enterprise 
Development Programs 1 (1986) .......................  10

CM
 <N



In  T he

G lm ul xtf %  Im tp ft
October T e r m , 1987

No.

Cit y  op R ic h 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

JURISDICTIONAL STATEMENT

The City of Richmond, Virginia, appeals from the 
judgment of the United States Court of Appeals for the 
Fourth Circuit holding that the minority subcontracting 
requirement of a Richmond ordinance is unconstitutional 
as being violative of the equal protection clause of the 
fourteenth amendment.

OPINIONS BELOW
The opinion of the Fourth Circuit from which this 

appeal is taken is reported at 822 F.2d 1355 (4th Cir. 
1987). It is reproduced as Appendix A in the Appen­
dices attached to this Jurisdictional Statement. The or­



2

der of the Fourth Circuit denying the Petition for Re­
hearing with Suggestion for Rehearing En Banc is un­
reported and is reproduced as Appendix B. The earlier 
opinion of the Fourth Circuit, which was vacated by this 
Court, is reported at 779 F.2d 181 (4th Cir. 1985) and 
is reproduced as Appendix E in the Supplemental Ap­
pendices accompanying this Jurisdictional Statement. 
The decision of this Court granting certiorari, vacating 
the judgment of the Fourth Circuit, and remanding to 
the Fourth Circuit, is reported at 106 S. Ct. 3327 (1986) 
and is reproduced as Appendix D. The opinion of the 
district court is unreported and is reproduced as Appen­
dix G in the Supplemental Appendices.

JURISDICTION
The judgment of the Fourth Circuit declaring the 

Richmond ordinance unconstitutional and remanding to 
the district court for determination of appropriate re­
lief was issued on July 9, 1987 (App. A ). A petition for 
rehearing with suggestion for rehearing en banc, filed 
on July 23, was denied on September 18, 1987, by a vote 
of 6-5 (App. B). A notice of appeal to this Court was 
filed with the Fourth Circuit on November 18, 1987 
(App. C).

This appeal is being docketed within 90 days of the 
denial of rehearing below. The jurisdiction of this 
Court is invoked under 28 U.S.C. § 1254(2) (1982).

CONSTITUTIONAL PROVISION 
AND ORDINANCE INVOLVED

This appeal involves (1) the equal protection clause of 
the fourteenth amendment to the United States Constitu­
tion, which provides that no state shall “deny to any per­
son within its jurisdiction the equal protection of the 
laws,” and (2) the Richmond, Virginia Minority Busi­
ness Utilization Plan, codified at Richmond, Va. Code 
ch. 24.1, art. 1(F) (Part B) fl 27.10-27.20, art. VIII-A



3

(1983). The Minority Business Utilization Plan is re­
produced as Appendix H in the Supplemental Appen­
dices accompanying this Jurisdictional Statement.

STATEMENT OF THE CASE
The United States Congress and this Court have rec­

ognized that racial discrimination in the construction in­
dustry, and its impact on public contracting opportuni­
ties for minorities, is a problem of national propor­
tions.1 Like many other local governments across the 
country, the City of Richmond, Virginia, sought to rem­
edy racial discrimination in its own local construction 
industry that had severely limited minority participa­
tion in its public construction contracts. It enacted a 
minority subcontracting plan for city construction con­
tracts similar to the federal plan approved by this Court 
in Fullilove v. Klutznick, 448 U.S. 448 (1980). The 
Fourth Circuit, claiming reliance on Wygant v. Jackson 
Board of Education, 106 S. Ct. 1842 (1986), declared 
the Richmond plan unconstitutional.

A. The Minority Business Utilization Plan
In 1983, one-half of the population of Richmond was 

minority, primarily black.1 2 In the five years prior to 
1983, less than one percent— practically none— of the 
City’s $124 million in construction contracts was awarded 
to minority-owned businesses.3 An ordinance to address 
this problem was drafted, and in April 1983, the Rich­

1 See Fullilove v. Klutznick, 448 U.S. 448 (1980).

2 Hearing on Adoption of Minority Business Utilization Plan, 
Richmond City Council 3 (1983) (hereinafter “Hearing Tran­
script ’ ). The transcript of the City Council’s public hearing is 
part of the record in this case. A copy has been lodged with the 
Clerk’s office for the Court’s convenience.

3 Of the $124 million in city construction contracts, 0.67 percent 
was awarded to minority businesses during this period. Id. at 46, 
49. See also App. G at 115.



4

mond City Council held a public hearing on this ordi­
nance. It heard testimony and other evidence that racial 
discrimination had limited minority participation in 
Richmond’s construction industry and effectively had ex­
cluded minority participation in city construction con­
tracts. Witnesses spoke for and against the ordinance 
in a vigorous debate.4

In addition to evidence about the insignificant minor­
ity participation in Richmond’s public construction con­
tracts, the City Council heard evidence that the major 
construction trade associations in the City contained vir­
tually no black members. The Associated General Con­
tractors of Virginia had 600 members, including 130 in 
Richmond, but no blacks;5 the American Subcontractors 
Association had 80 members in the Richmond area but 
no blacks; 6 the Richmond chapter of the Professional 
Contractors Estimators Association had 60 members but 
only one black;7 the Central Virginia Electrical Contrac­
tors Association had 45 members but only one black;8 
and the Virginia Chapter of the National Electrical Con­
tractors Association had 81 members but only two 
blacks.9

As the City Council knew, Congress had enacted a 
federal set-aside plan to remedy widespread racial dis­
crimination that had limited minority participation in 
public contracting at the federal, state, and local level, 
and this federal plan had been held constitutional in 
Fullilove:10 In addition, one member of the City Council,

4 See App. A at 16a (Sprouse, J., dissenting).
5 Hearing transcript at 25-26.
6 Id. at 39.
7 Id. at 44.
8 Id.

9 Id. at 36-37.
10 Id. at 8-9.



5

a former Mayor of Richmond, drew on his own experi­
ence with the Richmond construction industry in declar­
ing, “without equivocation,”  that widespread racial dis­
crimination in that industry had limited minority par­
ticipation in Richmond’s public construction contracts.11

At the end of the public hearing, the City Council en­
acted the Minority Business Utilization Plan.112 The plan 
required contractors to whom the City awarded prime 
contracts to subcontract at least thirty percent of the 
dollar amount of the contract to minority business enter­
prises (MBEs), unless the prime contractor was itself 
an MBE or the City waived the requirement.11 12 13 * * * * * Waivers 
would be granted by the City on a showing that the con­
tractor had attempted to comply with the plan’s require­
ment but that “sufficient, relevant, qualified” MBEs were 
unavailable or unwilling to participate. App. G at 116- 
17. So that the plan would not outlive its limited reme­
dial purpose, it was designed to expire by its own terms 
on June 30, 1988. App. H at 248.

B. The plan applied to Croson
Five months after the Richmond plan was enacted, the 

City invited bids for the installation of plumbing fixtures 
at the city jail. The J.A. Croson Company ( “ Croson” ), 
which is not an MBE, was interested in bidding on the

11 Id. at 46 (remarks of Henry Marsh).

12 Richmond, Va. Code ch. 24.1, art. 1(F) (Part B) ]\ 27.10-27.20 
(1983). The plan was actually enacted pursuant to two ordinances. 
See App. H.

13 The plan defined an MBE as “ [a,] business at least fifty-one
percent of which is owned and controlled, or fifty-one percent minor­
ity owned and operated, by minority group members . . . .”  App. H 
at 251. “Minority group members” were defined as “ [cjitizens of
the United States who are Blacks, Spanish-speaking, Orientals,
Indians, Eskimos, or Aleuts.” App. H at 252. Procedures promul­
gated pursuant to the plan required city officials to verify that an
MBE was in fact minority-owned and controlled, so that “sham” 
MBEs did not benefit from the plan. App. E at 62.







8

On appeal, the Fourth Circuit affirmed the district 
court’s decision.* 20 21 The Fourth Circuit found the district 
court had correctly applied a proper test in evaluating 
Croson’s equal protection claim.

Croson sought certiorari from this Court, which 
granted the writ, summarily vacated the judgment, and 
remanded the case for consideration in light of Wygant?1 
On remand, and without briefing or argument concerning 
the impact of Wygant, the original panel of the Fourth 
Circuit reversed itself and found the Richmond plan un­
constitutional, Judge Wilkinson writing for a divided 
court over a dissent from Judge Sprouse.22

Citing the plurality opinion in Wygant, the majority 
held that Richmond was obligated to show a “compelling 
interest” in its remedial plan, and that this required a 
showing that the City itself actively had discriminated 
against minority contractors. App. A at 5a, 8a. It 
considered the hearing testimony “nearly weightless,” 
id. at 8a, and it found insignificant the fact that a 
city with a minority population of fifty percent awarded 
less than one percent of its public construction contracts 
to minority contractors. Id. at 7a. The majority con­
cluded that the Richmond plan was a remedy for “ societal 
discrimination” rather than discrimination by the City 
itself, and that it was therefore unconstitutional under

ing that the small number of minority contractors in Richmond 
“suggests . . . that past discrimination has stymied minority entry 
into the construction industry in general, as well as participation 
in government construction contracting in particular.” App. G 
at 163-68.

20 J.A. Croson Co. v. City of Richmond, 779 F.2d 181 (4th Cir. 
1985) (App. E).

21 J.A. Croson Co. v. City of Richmond, 106 S. Ct. 3327 (1986) 
(App. D).

22 J.A. Croson Co. v. City of Richmond, 822 F.2d 1355 (4th Cir. 
1987) (App. A ).



Wygant. Id. at 8a-9a. It also held, in the alternative, 
that the Richmond plan was not sufficiently “narrowly 
tailored” to meet its remedial goal. Id. at 11a.

The dissent argued that the majority “ misconstrues 
and misapplies Wygant.”  App. A at 14a. Requiring a 
showing of active governmental discrimination against 
minority contractors, “might be fatally counterproduc­
tive to the concept of affirmative action,” it stated, id. 
at 20a, and is in any event inappropriate “ in areas where 
discrimination had effectively prohibited the entry of mi­
norities into the contracting business, as in Richmond.” 
Id. n .ll. In the dissent’s view, the City had sufficient 
evidence of past discrimination against minorities in its 
local construction industry, and the plan was sufficiently 
“ narrowly tailored,”  to pass constitutional muster under 
Wygant. Id. at 15a.

The City then filed a petition for rehearing and sug­
gestion for rehearing en banc. The Fourth Circuit de­
nied the petition by a vote of six to five.08

THE QUESTIONS ARE SUBSTANTIAL
This case presents substantial and important issues, 

not yet resolved by this Court, concerning the circum­
stances under which a city may act to remedy racial 
discrimination in the city’s construction industry that 
has prevented minorities from competing for city con­
struction contracts. The Fourth Circuit, citing this 
Court’s decision in Wygant, severely crippled the ability 
of cities effectively to remedy this discrimination. Other 
federal courts of appeal, also purporting to rely on 
Wygant, have reached similar results.23 24 As a conse-

9

23 Order, J.A. Croson Co. v. City of Richmond, No. 85-1002 (L), 
No. 85-1041 (4th Cir. Sept. 18, 1987) (App. B).

24 See Michigan Road Builders Association v. Milliken, No. 86- 
1239 (6th Cir. Nov. 25, 1987) ; Associated General Contractors,





io

quence, programs instituted by many other state and 
local governments are directly endangered.125 This is a 
matter of national importance and one that should not 
be left to unguided courts of appeal. This Court should 
resolve this matter after plenary review.

I. THE FOURTH CIRCUIT’S INTERPRETATION OF 
WYGANT THREATENS THE VIABILITY OF MI­
NORITY CONTRACTING PROGRAMS ACROSS 
THE COUNTRY

The City of Richmond’s Minority Business Utilization 
Plan represents one city’s effort to deal with its share of 
a national problem in the only way that it reasonably 
could.

The United States Congress attempted to deal with 
the same problem when it enacted the “minority busi­
ness enterprise” provision of the Public Works Employ­
ment Act of 1977.126 Congress had found that racial dis­
crimination in the construction and related industries 
had impaired the opportunities for minorities to partici­
pate in government contracting at the federal, state, and 
local level.* 25 * 27 In Fullilove, this Court upheld the constitu­

te City and County of San Francisco, 813 F.2d 922 (9th Cir. 
1987) (petition for rehearing pending) ; J. Edinger & Son v. City 
of Louisville, 802 F.2d 213 (6th Cir. 1986).

25 The United States Conference of Mayors and the United States 
Department of Commerce recently studied cities with populations 
between 30,000 and 350,000 and determined that minority business 
assistance efforts were ongoing in 120 out of the 320 cities that 
had responded to questionnaires. United States Conference of 
Mayors and United States Department of Commerce, 1986 National 
City Profiles: Report on Minority Enterprise Development Pro­
grams 1 (1986).

28 42 U.S.C. § 6705(f) (2) (1982).

27 On a closely related issue, this Court has stated that “ [ j] udi- 
cial findings of exclusion from crafts on racial grounds are so 
numerous as to' make such exclusion a proper subject for judicial



11

tionality of Congress’ attempt to deal with the minority 
contractor problem. The Court found the federal plan 
justified by “ abundant evidence . . . that minority busi­
nesses have been denied effective participation in public 
contracting opportunities by procurement practices that 
perpetuated the effects of prior discrimination.” 28

Like the federal government, state and local govern­
ments expend substantial resources each year on con­
struction contracts. In response to the very problem iden­
tified and addressed by Congress, many state and local 
governments across the country have enacted assistance 
programs for minority contractors.

In enacting its plan, Richmond was responding to 
dramatic evidence that minority businesses had been vir­
tually excluded from participation in the City’s construc­
tion contracts as a direct result of discrimination in 
Richmond’s construction industry. The disparity between 
the percentage of city construction business going to mi­
norities in Richmond— less than one percent— and the 
percentage of minorities in Richmond— fifty percent— 
was so clearly probative that by itself it strongly indi­
cates that discrimination had been at work.29 In combi­

notice.” United Steelworkers of America v. Weber, 443 U.S. 193, 
198n.l (1979).

28 Fullilove, 448 U.S. at 477-78 (plurality opinion).

29 Richmond had confronted in its recent past the need to break 
down racial barriers in various other segments of its society and 
in the city government itself. See, e.g., City of Richmond v. United 
States, 422 U.S. 358 (1975) (concerning the City’s annexation plan 
and its compliance with the Voting Rights Act) ; Bradley v. School 
Board, 462 F.2d 1058, 1065 (4th Cir. 1972) (en banc) (school 
desegregation case, finding that “within the city of Richmond there 
has been state . . . action tending to perpetuate apartheid of the 
races” ), aff’d by an equally divided Court, 412 U.S. 92 (1973) 
(per curiam). “ No race-conscious provision that purports to serve 
a remedial purpose can be fairly assessed in a vacuum.” Wygant, 
106 S. Ct. at 1858 (Marshall, J., dissenting).



12

nation with Congress’ findings of a long history of racial 
discrimination in state and local construction contract­
ing,30 and the other evidence adduced at its public hear­
ing,31 32 the City had a firm basis to believe that racial dis­
crimination effectively had shut minorities out of Rich- 
mond’s construction industry, and thus out of its public 
construction contracts.

The City had been a passive participant in the dis­
crimination that had erected a remarkably effective bar­
rier to minority participation in its construction con­
tracts. For years it had perpetuated the effects of that 
discrimination by continuing to award valuable city con­
tracts to a pool of contractors from which minorities had 
been virtually excluded. In 1983, Richmond decided to 
discontinue that role. Instead it began to create oppor­
tunities for minority entrepreneurs that previously had 
been denied to them because of racial discrimination. 
The City’s actions were responsible and reasonable.

After Fullilove, efforts like those of Richmond here 
were upheld by each of the three federal appeals courts 
in which they were challenged.82 Since the Court decided 
Wygant, however, the three federal courts of appeal that 
have considered the constitutionality of state or local

30 See Fullilove, 448 U.S. at 478. The Fourth Circuit dismissed 
the importance of Congress’ findings, stating that “ [n]ational 
findings do not alone establish the1 need for action in a particular 
locality.” App. A at 9a. However, the City was entitled to rely 
on Congress’ findings as long as it reasonably believed them to be 
relevant to the problem that it was addressing. See City of Renton 
v. Playtime Theatres, 475 U.S. 41, 50-52 (1986).

81 See supra pages 4-5.
32 See South Florida Chapter of Associated General Contractors 

of America v. Metropolitan Dade County, Fla., 723 F.2d 846 
(11th Cir.), cert, denied, 469 U.S. 871 (1984); Ohio Contractors 
Association v. Keip, 713 F.2d 167 (6th Cir. 1983) ; Schmidt v. 
Oakland Unified School District, 662 F.2d 550 (9th Cir. 1981), 
vacated on other grounds, 457 U.S. 594 (1982).



13

minority contracting programs have struck them down.133 
The Fourth Circuit’s reversal of its own position in this 
case exemplifies this turnaround.

Moreover, the manner in which the lower courts are 
interpreting Wygant does not, as a practical matter, 
permit a state or local government to demonstrate any 
“ compelling interest” in a minority contracting program. 
The approach of the Fourth Circuit here illustrates this 
point. The Fourth Circuit, relying on Wygant, concluded 
that Richmond did not have a “compelling interest” in 
its remedial plan because there was insufficient evidence 
that the City itself had engaged in the discrimination 
that it sought to remedy. App. A at 8a-9a. Even assum­
ing the “compelling interest” standard is appropriate,33 34 35 
the Fourth Circuit’s interpretation of Wygant makes 
unreasonable demands on a state or local government that 
wishes to remedy past discrimination by providing equal 
opportunities to minority members of its business com­
munity.

To require a government to admit or concede its 
own discrimination obviously would undermine its incen­
tives to take remedial action.315 Moreover, since longstand­

33 See supra note 24.

34 Members of this Court variously have stated that the govern­
ment’s interest in its remedial program must be “important” or 
“compelling” if it is to survive scrutiny under the equal protection 
clause. See United States v. Paradise, 107 S. Ct. 1053, 1064 n.17 
(1987).

35 See Wygant, 106 S. Ct. at 1855 (O’Connor, J., concurring in 
part and concurring in judgment). The City Council in fact was 
very concerned that its enactment of a remedial plan not be con­
strued as an admission of liability for past discrimination. When 
one Council member expressed concern that characterizing the plan 
as “remedial” might give rise to liability, the City’s attorney re­
sponded :

In the term remedial, we’re not just implying that the City 
was intentionally discriminatory in the past. What we’re say-



14

ing race-based barriers to entry have prevented minorities 
from even competing for government contracts,86 proving 
active governmental discrimination in the public contract­
ing setting usually will be futile and beside the point.* 37 
The Fourth Circuit stated that the appropriate way to 
prove past discrimination is through a comparison of “ the 
number of minority contracts and the number of minority 
contractors, taking into account other relevant variables 
such as experience and specialities.” 38 This test is im­
possible to satisfy where, as in this case, discrimination 
has prevented minorities from participating significantly 
in the pool from which contractors would be drawn. The 
Fourth Circuit’s approach will serve only to perpetuate 
discrimination that has been so effective as to deny mi­
norities even the opportunity to compete for government 
contracts.

ing is that there are statistics about the number of minorities 
which were awarded contracts in the past which would justify 
the remedial aspects of the legislation. We’re not saying there 
was intentional discrimination in any particular case.

Hearing Transcript at 8.

86 See Fullilove, 448 U.S. at 478.

37 In Fullilove, the minority set-aside plan was held constitutional 
on evidence showing that government had been in effect a passive 
participant in “the existence and maintenance of barriers to com­
petitive access which had their roots in racial and ethnic discrimi­
nation, and which continue today, even absent any intentional dis­
crimination or other unlawful conduct.”  Fullilove, 448 U.S. at 478.

38 App, A at 7a (emphasis in original). It also rejected the 
City’s use of general population statistics as “exactly the kind of 
evidence that will not pass muster,” id., reasoning that a “simi­
lar comparison” had been rejected by the plurality in Wygant. 
Id. It failed to appreciate that the comparison at issue in Wygant 
was rejected only because it was not probative of the issue of dis­
crimination. As Justice Powell explained in Wygant, “ [tjhere are 
numerous explanations for a disparity between the percentage of 
minority students and the percentage of minority faculty, many of 
them completely unrelated to discrimination of any kind.” Wygant, 
106 S. Ct. at 1848 (plurality opinion).



15

II. THE FOURTH CIRCUIT’S CONSTITUTIONAL 
ANALYSIS OF THE RICHMOND PLAN WAS 
MORE STRINGENT THAN WYGANT REQUIRES

The Fourth Circuit’s constitutional analysis of the 
Richmond plan was far more stringent than anything 
contemplated by this Court in Wygant or any other deci­
sion. Wygant involved issues very different from those 
presented in this case.39

Whether Richmond’s plan is supported by a compel­
ling or important interest— the critical question in this 
case—turns on issues not resolved by Wygant. In Wy­
gant, the court of appeals had upheld a race-conscious 
layoff provision on the theory that a school board had an 
interest in providing minority role models for its minor­
ity students in order to alleviate the effects of societal 
discrimination. A plurality of this Court rejected the 
court of appeals’ approach, reasoning that:

[sjocietal discrimination, without more, is too amor­
phous a basis for imposing a racially classified rem­
edy. . . .  No one doubts that there has been serious 
racial discrimination in this country. But as the 
basis for imposing discriminatory legal remedies

39 There obviously is strong disagreement about the meaning of 
Wygant and its application to the government; contracting setting. 
In this case, not only was there a vigorous dissent from Judge 
Sprouse, but five of the eleven judges of the Fourth Circuit voted 
for a rehearing en banc. In Michigan Road Builders Association 
v. Milliken, No. 86-1239 (6th Cir. Nov. 25, 1987) in which the 
majority relied on both Wygant and the instant case in declaring 
a Michigan minority contractor set aside program unconstitutional, 
the dissent’s opening remark was: “The majority reads Wygant 
v. Jackson Board of Education, 476 U.S. 267 (1986), as if it 
changed all the previously accepted standards for judging the 
validity of affirmative action programs of governments and gov­
ernmental units. That is not a fair appraisal of the purport or 
effect of Wygant.”  Slip op. at 28.



16

that work against innocent people, societal discrimi­
nation is insufficient and over expansive.40

The plurality also indicated that this Court had in the 
past “ insisted upon some showing of prior discrimina­
tion by the governmental unit involved.” 41

However, because this Court found the layoff provision 
to be unconstitutional in any event, it never explored the 
question of what constitutes “ societal discrimination,” 42 
or whether governmental participation in prior discrimi­
nation is required in all cases to support a voluntary af­
firmative action program,43 or, where governmental par­
ticipation is required, the kind or degree of participation 
required. Moreover, this Court did not consider “govern­
mental interest” issues in the public contracting context 
at all. Indeed, as Justice O’Connor pointed out in her 
concurring opinion:

[CJertainly nothing the Court has said today neces­
sarily forecloses the possibility that the Court will 
find other governmental interests which have been 
relied upon in the lower courts but which have not 
been passed on here to be sufficiently ‘important’ or

40 Wygant, 106 S. Cfc. at 1848 (emphasis in original).

41 Id. at 1847.

42 Justice O’Connor did indicate that “societal discrimination” is 
“discrimination not traceable to [a governmental agency’s] own 
actions.” Wygant, 106 S. Ct. at 1854. (O’Connor, J., concurring in 
part and concurring in judgment).

43 A showing of prior governmental discrimination is not neces­
sary where a voluntary affirmative action program is challenged 
under Title VII of the Civil Rights Act of 1964. See Johnson v. 
Transportation Agency, Santa Clara County, 107 S. Ct. 1442, 1451 
(1987). It is sufficient for the employer to show a “conspicuous . . . 
imbalance in traditionally segregated job categories.” Id. (quoting 
United Steelworkers of America v. Weber, 443 U.S. 193, 209 (1979) 
(Blackmun, J., concurring)).



17

‘compelling’ to sustain the use of affirmative action 
policies.44 *

The Fourth Circuit thus erred in concluding that Wygant 
required Richmond to show that the City itself actively 
had discriminated against minority contractors.

Wygant held that “ societal discrimination, without 
more” will not support a government’s use of race-con­
scious measures.415 This requirement is met here whether 
or not the City actively discriminated against minorities 
in the awarding of city construction contracts. The City 
Council was not attempting to remedy the effects of “ so­
cietal discrimination,” but rather was addressing a spe­
cific problem that concerned the conduct of city business 
and that it determined to be a direct result of racial dis­
crimination in a local industry, the effects of which the 
City was perpetuating. As Judge Sprouse stated in his 
dissent from the Fourth Circuit opinion:

[T]here was no suggestion before the Council that 
the Richmond business community needed a ‘role 
model’ in the form of highly visible minority con­
tractors performing public work, or even that the 
minimal presence of minority contractors in that 
endeavor was caused by such ‘societal’ discrimina­

44 Wygant, 106 S. Ct. at 1853. (O’Connor, J., concurring in part 
and concurring in judgment). See also id. at 1867 (Stevens, J., 
dissenting) (layoff provision justified by school board’s interest in 
employing minority teachers regardless of whether school board 
itself was guilty of racial discrimination) ; Sullivan, Sins of Dis­
crimination: Last Term’s Affirmative Action Cases, 100 Harv. L. 
Rev. 78 (1986) (arguing that voluntary affirmative action plans 
may be justified by a variety of goals other than remedying the 
past discrimination of the entity adopting the plan).

4(5 See Wygant, 106 S. Ct. at 1848 (plurality opinion). As Justice 
Powell stated in Wygant, if a remedial plan were designed to correct 
societal discrimination, “a court could uphold remedies that are 
ageless in their reach into the past, and timeless in their ability 
to affect the future.” Id.



18

tory factors as past inferior education or lack of 
access to social institutions.

App. A at 21a-22a. The governmental interest here is 
fundamentally different from that found insufficient to 
support the remedial plan in Wygant.

The Fourth Circuit also misapplied Wygant in holding 
that the Richmond plan was not sufficiently “narrowly 
tailored” to meet its remedial goal.46 Its primary argu­
ment was that “ [t]he thirty percent quota was chosen 
arbitrarily; it was not tied, for example, to a showing 
that thirty percent of Richmond subcontractors are mi­
nority-owned.” App. A at 11a. To a large extent, this 
position flows from the court’s erroneous view of the 
“ compelling interest”  issue. As discussed infra at 14, 
the Fourth Circuit failed to recognize that tying a mi­
nority subcontracting requirement to the percentage of 
local minority-owned contractors is inappropriate where 
that percentage is low as a result of discrimination. 
Moreover, its assertion that the thirty percent figure is 
arbitrary is unfair. As this Court has recognized, arriv­
ing at such a figure “ necessarily involve[d] a degree of 
approximation and imprecision.” 47 In view of the virtual 
absence of minority participation in city contracts in a 
city fifty percent minority, the thirty percent figure is 
reasonable.

The reasonableness of the Richmond plan is strength­
ened by the fact that it contains waiver provisions and 
an expiration date, both of which this Court has recog­
nized narrow the scope of an affirmative action plan’s

46 It is clear that a government must use appropriate means to 
achieve its remedial goals. The “narrowly tailored” standard is one 
of several standards enunciated by members of this Court at various 
times, and arguably the strictest. See United States v. Paradise, 
107 S. Ct. 1053, 1064 n.17 (1987). Even assuming it is the govern­
ing standard, it is satisfied in this case.

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



19

operation and minimize its impact on non-minorities.43 
The Fourth Circuit nevertheless found the waiver provi­
sions too “restrictive” because a waiver may be granted 
“only in exceptional circumstances” (precisely the same 
language approved in Fullilove) and as a matter of ad­
ministrative discretion, and because the burden of obtain­
ing the waiver is on the contractor seeking it. App. A at 
12a-13a. These are truly surprising criticisms, since not 
only are the waiver provisions modeled after those ap­
proved by this Court in Fullilove, but they contain stand­
ard terms one would expect to find in any waiver provi­
sion. Similarly, the Fourth Circuit gave no weight to the 
Richmond plan’s expiration date, on the ground it does 
not preclude the City from renewing the plan. Id. at 
12a. This, of course, is true of any expiration date. 
Given the nature of these criticisms, it is apparent that 
the Fourth Circuit’s interpretation of the “narrowly tail­
ored” requirement is far more stringent than anything con­
templated by this Court, and should not be left standing.

48 United States v. Paradise, 107 S. Ct. at 1067; Fullilove, 448 
U.S. at 510-11 (Powell, J., concurring).



20

CONCLUSION
For the foregoing reasons, this Court should note prob­

able jurisdiction of this appeal.

Respectfully submitted,

John Payton *
Mark  S. Hersh 
Peter L. Kah n  

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

Drew  St . J. Carneal 
City Attorney

M ichael 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

December 17,1987



APPENDICES



la

APPENDIX A

UNITED STATES COURT OF APPEALS 
FOURTH CIRCUIT

Nos. 85-1002, 85-1041

J.A . Croson Co m p a n y ,
v Appellant,

Cit y  of R ic h m o n d ,
Appellee,

A ssociated Gen eral  Contractors of A m erica ,
Amicus Curiae.

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

C it y  of R ich m o n d ,
Appellant,

A ssociated Gen eral  Contractors of A m erica ,
Amicus Curiae.

July 9, 1987

Rehearing and Rehearing En Banc 
Denied Sept. 18, 1987

Before HALL, SPROUSE, and WILKINSON, Circuit 
Judges.



WILKINSON, Circuit Judge:
This case is now before us on remand from the Su­

preme Court. It involves a challenge to the Minority 
Business Utilization Plan enacted by the City Council of 
Richmond, Virginia. The plan requires contractors on 
city construction projects to subcontract at least thirty 
percent of the dollar value of the contract to minority- 
owned business enterprises (MBE’s) unless the city 
waives the requirement. This court earlier upheld the 
plan under Virginia law and the federal Constitution.

The Supreme Court granted certiorari, vacated the 
judgment, and remanded the case for consideration in 
light of Wygant v. Jackson Board of Education, 476 U.S. 
267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986). We now 
hold that the Richmond plan is invalid under the Equal 
Protection Clause of the Fourteenth Amendment.

I.

The Minority Business Utilization Plan, enacted in 
April of 1983, sets aside part of the city’s construction 
expenditures for minority-owned businesses. The plan 
terminates in 1988, at which time the City Council can 
renew it or allow it to lapse. Under the plan, the prime 
contractor must subcontract at least thirty percent of the 
dollar value of the contract to firms that are at least one- 
half minority owned. Every construction contract in­
cludes provisions setting out the MBE requirement and 
the procedures for complying with it. The contract pro­
visions state that if a contractor fails to meet the MBE 
requirement, the contract “ shall be suspended or ter­
minated unless a waiver is granted.” They further state 
that the city will not waive the requirement “ other than 
in exceptional circumstances.” Only non-minority prime 
contractors must comply with the plan provisions.

In September of 1983, the city invited bids for the 
installation of stainless steel urinals and water closets at 
the City Jail. The J.A. Croson Co., which is not itself an

2a



3a

MBE, was the only bidder on the contract. After Croson 
submitted its bid for the project, it requested a waiver 
of the MBE requirement. Croson contended that it was 
unable to locate any minority subcontractors, except one 
that it considered unqualified. The city refused to grant 
a waiver. Croson then informed the city that if it were 
required to use the unqualified contractor, the cost of the 
project would rise by $7,663.16, and the contract price 
would have to rise accordingly. The city again turned 
Croson down, stating that the minority contractor was 
qualified and that the fixed price bid could not be in­
creased.

Shortly thereafter, the city informed Croson that it had 
decided to re-bid the project. Croson was invited to sub­
mit a new bid. Croson then sued in federal district court, 
arguing that the plan’s racial set-aside was contrary to 
Virginia law governing competitive bid procedures and 
that it violated the federal Constitution. Croson brought 
its federal claims under 42 U.S.C. §§ 1981 and 1983.

The district court ruled that the plan was consistent 
with both Virginia law and federal law. A divided panel 
of this court affirmed. J.A. Croson Co. v. City of Rich­
mond, 779 F.2d 181 (4th Cir. 1985). After this court 
announced its decision, the Supreme Court decided Wy- 
gant v. Jackson Board of Education, 476 U.S. 267, 106 
S.Ct. 1842, 90 L.Ed.2d 260 (1986). The Supreme Court 
granted certiorari in the Croson case and remanded it to 
us for further consideration in light of Wygant. See 
------  U.S. ------ , 106 S.Ct. 3327, 92 L.Ed.2d 733 (1986).

Wygant involved a challenge to a preferential layoff 
provision in a collective bargaining agreement for school 
teachers. The agreement stated that if the Board of Edu­
cation needed to lay off any teachers, those with the most 
seniority would be protected, “ except that at no time will 
there be a greater percentage of minority personnel laid 
off than the current percentage of minority personnel em­
ployed at the time of the layoff.” 106 S.Ct. at 1845. The



Court held this provision unconstitutional, principally be­
cause the racial preference was not justified by adequate 
findings of prior discrimination and because it was not 
narrowly tailored to its asserted remedial purpose.

After reconsidering our decision in light of Wygant, 
we conclude that we must invalidate the racial preference 
in the Richmond plan. The very infirmities which marked 
the preferential provision in Wygant are present in this 
case.

II.

Because the views of the majority in Wygant were 
expressed in a plurality opinion and two concurrences, 
the boundaries of Wygant will no doubt be a matter of 
dispute.1 There should be no dispute, however, about the 
core of its holding: To show that a plan is justified by 
a compelling governmental interest, a municipality that 
wishes to employ a racial preference cannot rest on 
broad-brush assumptions of historical discrimination. Yet 
that is exactly what the Richmond City Council did in 
this case. If this plan is held to be valid, then local gov­
ernments will be free to adopt sweeping racial prefer­
ences at their pleasure, whether those preferences are 
legitimate remedial measures or bald dispensations of 
public funds and employment based on the politics of 
race. It is precisely to guard against this latter abuse

1 Unless otherwise noted, the references to Wygant herein refer 
to the plurality opinion. The plurality opinion of Justice Powell was 
joined by Chief Justice Burger and Justice Rehnquist; it was also 
joined in part by Justice O’Connor, who wrote separately. Justice 
White concurred in the judgment and wrote separately.

Our analysis of the Richmond plan comports, we believe, with the 
views expressed in all three opinions. Although Justice White did 
not elaborate in Wygant on the requirements of particularized find­
ings and narrowly tailored means, he certainly did not indicate that 
he would permit localities greater latitude in this regard than 
Justices Powell and O’Connor. Of critical importance is the fact 
that five Justices concurred in the judgment that the racial prefer­
ence in Wygant was unconstitutional.



5a

that the Wygant requirement of particularized findings 
is essential.

A.
According to the Wygant plurality, before an asserted 

governmental interest in a racial preference can be ac­
cepted as “ compelling,” there must be findings of prior 
discrimination. Findings of societal discrimination will 
not suffice; the findings must concern “prior discrimina­
tion by the government unit involved”  (emphasis added). 
Wygant, 106 S.Ct. at 1847. Moreover, if this finding is 
to be drawn from mere statistical evidence, that evidence 
cannot just show a disparity between the percentage of 
minorities in some activity (e.g., employment in public 
schools or awarding of public contracts) and the percent­
age of minorities in the community. It must instead 
focus on the population that is relevent for comparative 
purposes, such as the percentage of minorities in the local 
labor force or the construction business. Id. at 1847-48; 
see also Johnson v. Transportation Agency, Santa Clara
County, ------  U.S. ------ , 107 S.Ct. 1442, 1452, 94 L.Ed.
2d 615 (1987); Hazelwood School District v. United 
States, 433 U.S. 299, 308 & n. 13, 97 S.Ct. 2736, 2742 
& n. 13, 53 L.Ed.2d 768 (1977) .s

The Supreme Court in United States v. Paradise, ____
U.S. ------ , 107 S.Ct. 1053, 94 L.Ed.2d 203 (1987) and
Local 28 of Sheet Metal Workers v. EEOC, ____  U.S.
------ , 106 S.Ct. 3019, 92 L.Ed.2d 344 (1986), reempha­
sized this need for a suitable basis for remedial action. 
In both of these cases, the Court upheld race-conscious 
relief imposed by district courts where the offending in- 2

2 The Supreme Court’s decision in Johnson, supra,, does not alter 
Wygant’s requirement of a showing of prior discrimination. The 
Johnson Court addressed only a Title VII claim, not a Fourteenth 
Amendment claim such as the one now before us. The Court stated 
that if a Fourteenth Amendment claim were before it in Johnson, 
the Wygant standard would come into play. 107 S.Ct, at 1446 n 2 • 
id. at 1449-50 n. 6.



6a

stitutions had a history of discriminatory conduct. In 
Paradise, for example, the Court reviewed that institu­
tional history in painstaking detail, noted the “ four dec­
ades” during which blacks had suffered total exclusion 
from all positions in the Alabama Department of Public 
Safety, and concluded that the “ pervasive, systematic, 
and obstinate discriminatory conduct of the Department” 
justified the race-conscious relief ordered by the district 
court. 107 S.Ct. at 1065 (opinion of Brennan, J.). While 
Wygant involved voluntary action and Paradise and 
Sheet Metal Workers involved court-ordered remedies, 
there was in all those cases a substantial basis for be­
lieving that remedial action was required.

Here, by contrast, proceedings before the City Council 
failed to establish the basis for remedial action. The de­
bate, at the very end of a five-hour council meeting, re­
vealed no record of prior discrimination by the city in 
awarding public contracts, aside from some conclusory 
and highly general statements made by a member of the 
public, a City Council member who supported the plan, 
and the City Manager. The member of the public who 
testified about discrimination was not even involved in 
the construction industry. The City Manager’s comments 
mainly had to do with the city of Pittsburgh. Such 
meager evidence is not a sufficient finding of prior dis­
crimination. The proceedings betray the very casualness 
about the use of racial distinctions in public enactments 
that Wygant warned against.

The only other evidence purporting to show discrimin­
ation in the assignment of contracts compared the per­
centage of minority contracts with the total number of 
minority residents in the community. Statistical records 
were said to indicate that minorities comprised 50% of 
Richmond’s population but that minority-owned firms had 
received only 0.67% of the dollar value of Richmond’s 
prime contracts. General population statistics suggest, if 
anything, more of a political than a remedial basis for



7a

the racial preference. According to the plurality in Wy- 
gant, this is exactly the kind of evidence that will not 
pass muster.

The appropriate comparison is between the number of 
minority contracts and the number of minority con­
tractors, taking into account other relevant variables 
such as experience and specialties. Showing that a small 
fraction of city contracts went to minority firms, there­
fore, does not itself demonstrate discrimination; both 
sides agree that the number of minority-owned contrac­
tors in Richmond was also quite small. Wygant rejected 
a similar comparison in an employment context:

There are numerous explanations for a disparity be­
tween the percentage of minority students and the 
percentage of minority faculty, many of them com­
pletely unrelated to discrimination of any kind. In 
fact, there is no apparent connection between the 
two groups. Nevertheless, the District Court com­
bined irrelevant comparisons between these two 
groups with an indisputable statement that there 
has been societal discrimination, and upheld state 
action predicated upon racial classifications.

106 S.Ct. at 1838.

Our holding today is likewise consistent with that of 
the Sixth Circuit in J. Edinger & Son, Inc. v. City of 
Louisville, 802 F.2d 213 (6th Cir.1986). In Edinger, the 
city of Louisville enacted a program to grant preferen­
tial treatment to racial minorities, women, and the handi­
capped in awarding its supply and service contracts. 
There, as in the present case, the need for the program 
was justified principally by general population statistics. 
Because general population statistics failed to address the 
“statistical disparity between the percentage of qualified 
minority business contractors doing business in Jefferson 
County and the percentage of bid funds awarded to those 
businesses,”  the Sixth Circuit found that the program did



8a
not comport with Wygant. 802 F.2d at 216. Accord Ms- 
sociated General Contractors of California v. San Fran­
cisco, 813 F.2d 922 (9th Cir. 1987).

We do not suggest that the City Council should be 
held to as high a standard in its factfinding as, say, a 
federal district court. Justice O’Connor, in her concur­
rence in Wygant, identified the problems with requiring 
an extended mea culpa from localities seeking to eliminate 
a historical pattern of discriminatory practice. Legisla­
tive findings are, moreover, different from judicial ones; 
the City Council need not have produced formal, contem­
poraneous findings, so long as it had “ a firm basis for 
believing that remedial action is required.” Wygant, 106 
S.Ct. at 1853 (O’Connor, J., concurring in part and 
concurring in the judgment).

In this case, however, the city has failed to show 
such a firm basis, either contemporaneously or at the 
district court level. The able trial judge could not point 
to any evidence beyond that relied upon by the City 
Council— namely, the spurious statistical comparison and 
the nearly weightless testimony. We cannot uphold the 
plan based on this evidence, nor would it be proper for 
us to develop a post hoc rationale for the city’s racial 
preference.

In sum, the omissions in this case overshadow the evi­
dence. There has been no showing that qualified minority 
contractors who submitted low bids were passed over. 
There has been no showing that minority firms were 
excluded from the bidding pool. Edinger, 802 F.2d at 
216. There has been no showing— only the loosest sort 
of inferences.— of past discrimination, without which 
Wygant does not permit a racial preference to stand.

The record in this case suggests that the City Council 
thought it was permissible simply to adopt the contract 
set-aside program upheld by the Supreme Court in Ful- 
lilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 
L.Ed.2d 902 (1980). Much of the discussion in the hear­



9a
ings was apparently based on that premise, and some 
aspects of the Richmond plan follow the Fullilove set- 
aside to the letter. If the City Council did rely on that 
premise, it was in error. National findings do not alone 
establish the need for action in a particular locality. If 
they did, the Wygamt Court’s rejection of societal dis­
crimination as a basis for remedial action would be un­
dercut. For a locality to show that it enacted a racial 
preference as a remedial measure, it must have had a 
firm basis for believing that such action was required 
based on prior discrimination by the locality itself. The 
Court upheld the set-aside in Fullilove based on Con­
gress’s well-founded belief that such a program was 
needed at the federal level; the Court emphasized the 
special competence of Congress to act on such a finding. 
448 U.S. at 483, 100 S.Ct. at 2777; 448 U.S. at 499-502, 
100 S.Ct. at 2785-87 (Powell, J., concurring). Localities 
cannot disregard the line between remedial measures and 
political transfers by adopting the Fullilove program as 
though it were boilerplate.

B.
The record of prior discrimination supporting the 

Richmond plan is deficient. Its deficiency is made more 
clear by comparison with plans considered in other cir­
cuits, For example, in Valentine v. Smith, 654 F.2d 503 
(8th Cir.1981), the record of prior discrimination sup­
porting the racial preference included reviews by the 
Office of Civil Rights of the Department of Health, Edu­
cation, and Welfare (HEW) and also a successful Title 
VI suit in federal district court. A similar record sup­
ported the preference in Kromnick v. School Dist of Phil­
adelphia, 739 F.2d 894 (3d Cir.1984).

In Associated General Contractors v. Metropolitan 
Dade County, 723 F.2d 846 (11th Cir.1984), the locality 
had “ reliable, substantial information compiled by in­
dependent investigations” that showed “ identified dis­
crimination against Dade County black contractors, . .



Id. at 853 (emphasis in original). The Court in Ohio 
Contractors Assoc, v. Keip, 713 F.2d 167 (6th Cir.1983), 
found that the state’s racial preference was a remedial 
measure partly because the legislators

were informed of the findings of racial discrimina­
tion in state contracting made in connection with an 
earlier joint resolution of the legislature and the con­
tents of the report of a special ‘task force’ estab­
lished by the state attorney general which found a 
severe numerical imbalance in the amount of busi­
ness the state did with minority groups.

Id. at 171. The court went on to describe various studies 
comparing the volume of minority contracts with the 
number of minority businesses, rather than the minority 
population as a whole.

Finally, in Fullilove, the Supreme Court noted that 
Congress’s decision to enact a minority set-aside for fed­
eral contracts was supported by reports of congressional 
committees, the U.S. Civil Rights Commission, and the 
General Accounting Office. See 448 U.S. at 465-67, 100 
S.Ct. at 2768-69; id. at 503-06, 100 S.Ct. at 2787-89 
(Opinion of Powell, J .) .

Of course, we do not intimate any view of the ade­
quacy of the plans described in Valentine, Kromnick, As­
sociated General Contractors, and Ohio Contractors. These 
cases were all decided prior to the Wygant decision. We 
note only that the support offered for the Richmond plan 
is extremely weak in comparison. The plan was not sup­
ported by any impartial report, any meaningful statis­
tical evidence, or even by anecdotal allegations of prior 
discrimination. Based on such a record, we cannot up­
hold the plan as a remedial measure under Wygant. If 
this plan is supported by a compelling governmental in­
terest, then so is every other plan that has been enacted 
in the past or that will be enacted in the future.



III.
Even if we accepted that the Richmond racial set-aside 

was justified by a need to remedy prior discrimination, 
the plan still fails because it is not narrowly tailored to 
that remedial goal. It is of central importance to equal 
protection under law that public distinctions between 
citizens on the basis of their race be narrowly and spe­
cifically framed. Wygant, 106 S.Ct. at 1849-50. The 
thirty percent quota was chosen arbitrarily; it was not 
tied, for example, to a showing that thirty percent of 
Richmond subcontractors are minority-owned. The figure 
simply emerged from the mists. The combination of a 
large set-aside and a small number of actual minority 
beneficiaries presents a special potential for abuse. As 
such, it imposes an overbroad competitive burden on non­
minority businesses.

The competitive disadvantage is far greater than the 
thirty percent minimum set-aside suggests. In many con­
struction contracts, the dollar allocation among sub­
contractors will not break into a thirty percent block. 
If, for example, a project required three subcontractors 
whose respective efforts represented 55, 25, and 20 per­
cent of the total project cost, compliance with the Rich­
mond ordinance could come only by awarding 55 or 45 
percent of the total dollar amount to racially preferred 
businesses. In this case, the supply of plumbing fixtures 
represented 75 percent of the cost of the total project, an 
amount Croson was obliged to award to a minority en­
terprise in order to meet the minimum 30 percent set- 
aside. Such means “unnecessarily trammel the rights of 
innocent individuals directly and adversely affected by a 
plan’s racial preference.” Wygant, 106 S.Ct. at 1854 
(Opinion of O’Connor, J.). The disadvantage is further 
compounded by the fact that minority prime contractors 
are exempt from the higher construction costs often im­
posed by the MBE subcontract set-aside while non­
minority primes are subject to them. Richmond City 
Code, Ch. 24.1, Art. VIII-A (A),

11a



12a

In addition, the definition of minority-owned business 
is itself not narrowly tailored to the remedying of past 
discrimination. The Richmond plan defines “minority 
group members” as “ [cjitizens of the United States who 
are Blacks, Spanish-speaking, Orientals, Indians, Eskimos, 
or Aleuts.” This definition nearly duplicates the definition 
that drew fire in Wygant:

The Board’s definition of minority to include blacks, 
Orientals, American Indians, and persons of Spanish 
descent . . . further illustrates the undifferentiated 
nature of the plan. There is no explanation of why 
the Board chose to favor these particular minorities 
or how in fact members of some of the categories can 
be identified. Moreover, respondents have never sug­
gested— much less formally found—that they have 
engaged in prior, purposeful discrimination against 
members of each of these minority groups.

106 S.Ct. at 1852 n. 13.
The same aggregation problem is present in the Rich­

mond plan. A record of prior discrimination against 
blacks by a governmental unit would not justify a reme­
dial plan that also favors other minority races. The need 
for this kind of narrow tailoring, like the need for find­
ings of past discrimination, arises because the govern­
mental unit enacting a racial preference must limit itself 
to remedying past discriminatory practices.

Finally, as was noted by the prior opinion in this case, 
the presence of an expiration date and a waiver provi­
sion may help to narrow the scope of a plan’s operation. 
Croson, 779 F.2d at 191. Those features cannot, however, 
salvage an ordinance which otherwise transgresses Wy- 
gant’s standards. Whether the Richmond plan will be 
retired or renewed in 1988 is, at this point, nothing more 
than speculation. Nor does the waiver here cure the con­
stitutional defects defined by the Wygant decision. The 
waiver is to be granted “ only in exceptional circum­



13a
stances” and as a matter of administrative discretion. 
The burden of obtaining the waiver rests at all times 
upon the prime contractor who must demonstrate the un­
availability or the unwillingness of racially preferred en­
terprises to participate in the contract project. See Cro- 
son, Appendix B, 779 F.2d at 179-80. We doubt that any 
waiver, let alone the restrictive provisions of the waiver 
in this case, could cure the objectionable aspects of the 
Richmond ordinance.

Although this case presents a Fourteenth Amendment 
claim rather than a Title VII claim, the Supreme Court’s 
recent pronouncement on Title VII in Johnson, supra, is 
still instructive. The Court may have adopted a different 
standard for evaluating challenges to plans under Title 
VII than under the Fourteenth Amendment, but it has 
insisted in both contexts that remedial efforts must ensure 
fair treatment of whites and blacks, males and females. 
The Court stressed in Johnson that the Agency plan per­
mitted competition among qualified aspirants, 107 S.Ct. 
at 1455; the Richmond plan, by contrast, aims to stifle 
competition in the interest of a rigid set-aside. The plan 
upheld in Johnson made race or gender “but one of nu­
merous factors” considered by the government agency in 
its employment decisions. Id. The race or gender of an 
applicant was merely a “plus” ; no rigid quotas or set- 
asides were used. The Court characterized the program 
as a “moderate, flexible, case-by-case approach to effecting 
a gradual improvement in the representation of minori­
ties and women in the Agency’s work force.”  Id. at 1457. 
None of the factors emphasized by the Court in Johnson 
aPPiy Richmond’s plan, which features the combination 
of an inadequate foundation for remedial action plus a 
“reflexive adherence to a numerical standard” which the 
Supreme Court in Johnson disavowed. Id. at 1455.

IV.

The Wygant requirements amount to more than a 
trivial hurdle for localities that wish to draw racial dis­



14a

tinctions. They are the heart of the Supreme Court’s 
approach to the constitutionality of remedial preferences. 
Nothing in Wygant outlaws all such preferences, and sub­
sequent cases have clarified their reach. Wygant does, 
however, limit racial preferences to what is necessary to 
redress a practice of past wrongdoing. The Richmond 
ordinance reflects the most casual deployment of race in 
the dispensation of public benefits. It prefers some, and 
in so doing diminishes the rights of all. Wygant rejected 
that approach, and with it the notion that racial distinc­
tions among citizens will ever become the perfunctory 
reality of public life.

The judgment of the district court is reversed and the 
case is remanded for a determination of appropriate legal 
and equitable relief.

REVERSED AND REMANDED.

SPROUSE, Circuit Judge, dissenting:
As the majority notes, the Supreme Court remanded 

our previous decision for us to consider the constitu­
tionality of the City of Richmond’s affirmative action 
ordinance in light of Wygant v. Jackson Board of Educa­
tion, 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986). 
In my view the majority both misconstrues and mis­
applies Wygant. In his plurality opinion, Justice Powell 
stated that any classfication based on race “must be justi­
fied by a compelling governmental interest,” id. at 1846 
(plurality opinion) (quoting Patmore v. Sidoti, 466 U.S. 
429, 432, 104 S.Ct. 1879, 1881, 80 L.Ed.2d 421 (1984)), 
and “the means chosen . . .  to effectuate its purpose must 
be ‘narrowly tailored to the achievement of that goal.’ ” 
Id. (quoting FuMlove v. Klutznick, 448 U.S. 448, 480, 100 
S.Ct. 2758, 2775, 65 L.Ed.2d 902 (1980)). Four justices 
in Wygant also expressed the view that “societal discrimi­
nation” is not a sufficient basis for demonstrating a com­



15a
pelling governmental interest;3 I think the Richmond 
ordinance easily satisfies Justice Powell’s two-prong test 
and, assuming that a majority of the Court eventually 
will adopt the “ societal discrimination” modification, it 
satisfies the test even as modified.

I.

On April 11, 1983, the Richmond City Council, the
legislative body of the City of Richmond, voted six to 
three to adopt the affirmative action ordinance at issue in 
this case.4 * 6 It acted in response to information presented 
at a public hearing held that day that, among other things, 
indicated that although minority groups made up fifty 
percent of the City’s population, only two-thirds of one 
percent of the City’s construction contracts from 1978- 
1983 were awarded to minority businesses. The ordinance 
required all contractors to whom the City awarded con­
struction contracts to subcontract at least thirty percent 
of the dollar amount of the contract to minority business 
enterprises (MBEs) unless the City waived the require­
ment. The ordinance was expressly remedial, “enacted for 
the purpose of promoting wider participation by minority 
business enterprises in the construction of public proj­
ects.” ® It automatically expires on June 30, 1988.

During a prolonged debate prior to enacting the ordi­
nance, the Council reviewed the history of public procure­

3 The majority correctly states that five Justices concurred in the 
judgment that the remedy in Wygant was unconstitutional. It also 
properly notes, albeit somewhat implicitly, that Justice White, who 
provided the crucial fifth vote in the case, did not join in the opin­
ions of either Justice Powell or Justice O’Connor. The majority’s 
assertion, therefore', that the “ Wygant Court[] rejectfed] . . . 
societal discrimination as a basis for remedial action,” at 1359, is 
misplaced. Only four Justices adopted this position, Justice White 
did not.

4 See generally Richmond, Va.Code Ch. 24.1, Art. 1(F) (Part B)
(27.10) (27.20) and Art. VIII-A.

6 Richmond, Va.Code Ch. 24.1, Art. VIII-A(C).



16a

ment in Richmond.6 The Council and witnesses had avail­
able historical records of city contracting, which showed 
that minorities, who constituted fifty percent of the City’s 
population, had been awarded over a five-year period only 
two-thirds of one percent of the City’s contracting busi­
ness. The debate was sharp, and the issue was well de­
fined. Unchallenged statements of council members dem­
onstrated that the ordinance was designed to serve a 
remedial purpose. One councilman observed that the 
Council had “reviewed the history of the construction con­
tracts” and structured the proposed ordinance in accord­
ance with federal law (presumably the statute interpreted 
by the Supreme Court in Fullilove) . Another councilman 
stated:

And I can say without equivocation, that the general 
conduct in the construction industry in this area, and 
the State and around the nation, is one in which race 
discrimination and exclusion on the basis of race is 
widespread.

I think the situation involved in the City of Rich­
mond is the same, and I would like to give the Clerk 
a copy of the listing of the contracts for the past five 6

6 At the hearing, the Council heard from : Esther Cooper; Freddie 
Ray, President of Task Force for Historic Preservation in Minority 
Communities; Stephen Watts, attorney representing Associated 
General Contractors of Virginia; Richard Beck, president of a local 
plumbing contractors’ association; Mark Singer, a representative of 
the electrical contractors’ association; Patrick Murphy, American 
Subcontractors Association; A1 Shuman, Professional Estimators 
Association. During the debate between Council members, those 
opposed to the ordinance contended it was unfeasible because there 
were insufficient numbers of minority contractors, because it would 
inflate contract bids and because it would not be conducive to top 
quality work. Council members favoring the ordinance emphasized 
the history of discrimination in the construction industry, the 
current difficulties encountered by MBEs in the Richmond area, and 
the success of similar set-aside programs in other parts of the 
country. Hearing on Adoption of Minority Business Utilization 
Plan, Richmond City Council, April 11, 1983.



17a

years awarded by the City of Richmond. Contracts 
totalling over 124 million dollars. And less than one 
percent were given— were awarded to minorities. I 
think the question of whether or not remedial action 
is required is not open to question.

A city councilman and the city manager further urged 
that the construction industry discriminated against per­
sons on the basis of race, both in the city of Richmond 
and the state of Virginia. A number of contracting as­
sociation representatives took part in the hearing, and 
none denied this claim— although several asserted that 
their own organizations did not discriminate on the basis 
of race.'7 8 Proponents of the ordinance asserted that this 
discrimination was parallel to and part of the discrimi­
nation that currently existed in the nation’s construction 
industry.8. Likewise, opposing witnesses and council mem­
bers did not deny this assertion. As noted, after the 
debate ended the Council approved the “ set-aside” ordi­
nance by a vote of six to three.

7 One of the contractor representatives speaking in opposition to 
the bill cited statistics to the effect that, of the construction con­
tractors in the United States, only 4.7% were minority contractors 
and 41 % of that figure were located in five states. The balance were 
scattered among the other 45 states, including Virginia. In other 
words, in a 45-state area (including Virginia) only 2.8% of the 
contractors were minorities. The spokesman for the general con­
tractors of Virginia testified that there were 600 contractors in the 
state association and 130 in Richmond. None were black. Other 
witnesses testified that none of the 150 Virginia plumbing, heating 
and cooler contractors were black; that three of the 200 electrical 
contractors in the state were black; that none of the 150 to 200 
Virginia members of the American Subcontractors Association were 
black; that one of 60 members of the central Virginia contractors 
association was black; and that one of 45 professional estimators in 
the Richmond association was black.

8 The Supreme Court: in United Steelworkers of America v. Weber, 
443 U.S. 193, 198 n. 1, 99 S.Ct. 2721, 2725 n. 1, 61 L.Ed.2d 480 
(1979), noted that: “ [jJudicial findings of exclusion from crafts on 
racial grounds are so numerous as to make such exclusion a proper 
subject for judicial notice.”



18 a 

II.

A.
In the majority’s view, the Council totally failed to 

establish prior discrimination in the awarding of public 
construction contracts. This is a slippery foundation upon 
which to build the principal part of its opinion.19 Assum­
ing, however, a requirement that lacked majority support 
in Wygant, I am persuaded that the Richmond Council 
had a firm basis for believing it had engaged in past dis­
crimination in awarding public contracts.

Initially, it is essential that we keep our appellate task 
in the proper perspective. We are not reviewing findings 
of fact and, as the majority concedes, we do not review 
the Council’s actions under the same criteria by which we 
review judicial decisions. If that were the case, our re­
view would intrude into the local legislative process and 
impose undue limitations on local policymakers. Here, 
however, we need only be assured that the council mem­
bers, “who are presumably fully aware both of their 
duty under federal law to respect the rights of all their 
[contractors] and of their potential liability for failing to 
do so, act[ed] on the basis of information which g[ave] 
them a sufficient basis for concluding that remedial action *

k 9 Xt must be emphasized that Wygant simply does not mandate 
particularized findings” of “prior discrimination by the govern­

ment unit involved,” At 1357 and 1358 (emphasis in original), as a 
constitutional prerequisite to the validity of a race-conscious remedy 
for unlawful discrimination. The suggestion that a public entity 
may never implement such a remedy to redress the effects of dis­
crimination it had not perpetrated is supported only by Justice 
Powell’s opinion for a three-justice plurality. Even that opinion did 
not make-, in the words of the present majority, “particularized 
findings . . .  [of actual discrimination] essential.” Id. at 1357. 
Indeed, a majority of the Court disclaimed any such requirement, 
see Wygant, 106 S.Ct. at 1853 (O’Connor, J., concurring), and only 
four Justices would expressly require a public actor to document 
(at minimum) that it “has a firm basis for believing that remedial 
action is required.” See id.



19a

is necessary . . . Wygant, 106 S.Ct. at 1855-56 
(O’Connor, J., concurring). As Chief Justice Burger has 
observed, “ Congress, of course, may legislate without com­
piling the kind of ‘record’ appropriate with respect to 
judicial or administrative proceedings.” Fullilove, 448 
U.S. at 478, 100 S.Ct. at 2774 (plurality opinion). The 
Chief Justice was considering congressional power in a 
tripartite government context, but his observation also 
relates to the legislative nature of the procedings. We 
should at least give similar deference to the Council’s 
proceedings. Considering the gross disparity between the 
resources of the City Council of Richmond and the United 
States Congress, I am convinced that the Council pro­
ceeded on a firm basis for believing that its ordinance 
was necessary to remedy the effects of prior racial dis­
crimination in the awarding of public construction con­
tracts.

The Council was satisfied that the pervasive discrimina­
tion existing in the nation’s craft unions and construction 
businesses also existed in Richmond. Minority contractors 
had received only two-thirds of one percent of city con­
struction contracts between 1978 and 1983, although the 
minority population of Richmond during this period was 
approximately fifty percent. The Council was convinced 
that this disparity resulted from purposeful discrimina­
tion against minority contractors.

I would not disagree with the majority’s observation 
that the Council did not make particularized findings of 
past discrimination.10 No one testified, for example, that

10 Under the view held by a majority of the' Court in Wygant, 
such findings clearly are not necessary. See supra p. 1363, n. 7. In 
her concurring opinion, Justice O’Connor stated “ [t]he 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’ incen­
tive to meet voluntarily their civil rights obligations.” Wygant, 106 
S.Ct. at 1855 (O’Connor, J., concurring).



20a
he had applied for a city contract and was denied it be­
cause he was black. However, not only is such evidence 
“hard to come by,” but municipal legislative proceedings 
simply are not geared to producing it, even if it is avail­
able. Additionally, as Justice O’Connor recognized, the 
requirement of such a mea culpa finding might be fatally 
counter-productive to the concept of affirmative action.

A statistical showing is not a prerequisite to an affirma­
tive action plan and is particularly inappropriate in situ­
ations of this type. There are, for example, one hundred 
thirty members in the general contractor association of 
Richmond. None are black. Information developed during 
the council debate revealed that blacks constitute less than 
one percent of construction contractors involved in all 
crafts. The award of two-thirds of one percent of public 
contracts to an approximately equivalent percentage of 
qualified minority contractors would hardly establish a 
prima facie case of discrimination.

It seems inevitable, however, that a proof scheme re­
quiring a comparison of the percentage of contracts 
awarded with this small qualified pool of minority con­
tractors would ensure the continuation of a systemic fait 
accompli, perpetuating a qualified minority contractor 
pool that approximates two-thirds of one percent of the 
overall contractor pool.11 It is true that in a case amen- 11

11 To require such a proof scheme, as does the majority, creates 
a gross anomaly. To illustrate, assume that in some metropolitan 
areas, the percentage of qualified minority contractors is approxi­
mately equivalent to the percentage of minorities in their general 
population. An affirmative action plan might be allowed in these 
areas because there would be a statistical basis, to show a dis­
crepancy between the percentage of minorities awarded contracts 
and the percentage of qualified minority contractors. In contrast, a 
plan would not survive the proof scheme in areas where discrimina­
tion had effectively prohibited the entry of minorities into the con­
tracting business, as in Richmond, because there would be no 
discrepancy between the two points of comparison. It is anomalous 
that truly pernicious discrimination could have the compound eifect 
of blocking remedial action.



able to statistical proof, a comparison of the percentage of 
construction contracts awarded to minority contractors 
and the percentage of minorities in the general population 
usually would be probative of “ societal discrimination.”  I 
suggest, however, that two-thirds of one percent compared 
to a minority population of fifty percent breaks the 
bounds of the sometimes suspect “ science” of statistics 
and is probative of a good deal more than general dis­
crimination.

In my view, therefore, not only was the traditional 
statistical data unavailable, it was not necessary to sup­
port the Council’s conclusions. The Council, for the rea­
sons I have discussed, had a firm basis for concluding 
that the remedial ordinance was necessary to cure the ills 
of past discrimination in awarding public contracts.

B.
As I have said, this “ firm basis” satisfies the compelling 

state interest test, even considering the “societal discrimi­
nation” limitations that might modify that requirement. 
Justice Powell in Wygant stated:

Societal discrimination, without more, is too amor­
phous a basis for imposing a racially classified 
remedy.

• • • • •

No one doubts that there has been serious racial 
discrimination in this country. But as the basis for 
imposing discriminatory legal remedies that work 
against innocent people, societal discrimination is in­
sufficient and over expansive.

Wygant, 106 S.Ct. at 1848 (plurality opinion). Justice 
Powell expressed this concern against the background of 
the explicit approval by the circuit court in Wygant of 
the “role model” and “ societal discrimination”  bases for 
the affirmative action plan involved there. In this case, 
however, there was no suggestion before the Council that 
the Richmond business community needed a “role model”

21a



22a

in the form of highly visible minority contractors per­
forming public work, or even that the minimal presence 
of minority contractors in that endeavor was caused by 
such “ societal” discriminatory factors as past inferior 
education or lack of access to social institutions.

The conclusions that emerged from the Council’s de­
bate concerned the City’s previous discrete discrimination 
in awarding contracts for public construction projects. 
However, even if the lack of contracts awarded to minor­
ity contractors resulted from both societal discrimination 
and discrete discrimination in public construction, that 
fact should not preclude an affirmative action remedy for 
the latter. The line between “ societal” discrimination and 
discrete discrimination may in fact sometimes be illu­
sory.112 For example, Justice O’Connor noted that the 12

12 A good argument can be made that the converse: of Justice 
Powell’s statement is also true—discrimination that is not amor­
phous cannot merely be labeled “societal discrimination” and dis­
missed from consideration in establishing affirmative action pro­
grams. Lawyer and humanitarian that he is, I cannot believe that 
Justice Powell meant to dismiss concrete examples of man’s inhu­
manity to man simply because the deprivation was not caused by an 
identified employer or governmental representative. What is amor­
phous to one unaffected may be all too painfully clear to one whose 
livelihood has been adversely affected or whose children cannot 
receive opportunities equal to their brethren. I do' not understand 
Justice Powell’s position to be that societal discrimination can never 
be part of an appropriate basis for imposing such a remedy. In­
stead, I believe he is saying that before an entity enacts an affirma­
tive action program, it must have a strong basis for concluding the 
program is necessary to' correct racial imbalances directly attributa­
ble to racial discrimination, whether or not it is in part societal 
discrimination.

In Wygant, for example:, a number of unexplained reasons could 
have accounted for the disparity between the percentage of minority 
teachers and the percentage of minority students in the Jackson 
school system. A generalized belief that some amorphous, or “socie­
tal,” discrimination contributed to that disparity was insufficient to 
justify the School Board’s affirmative action program. In Fullilove, 
however, the program constituted an appropriate remedy, in light 
of Congress’ well-documented finding that both public and private



23a

court of appeals in Wygant apparently had assumed 
“that in the absence of a specific, contemporaneous find­
ing, any discrimination addressed by an affirmative ac­
tion plan could only be termed ‘societal.’ ”  Wygant, 106 
S.Ct. at 1854 (O’Connor, J., concurring). She empha­
sized that such an assumption was false. Id. Here, “ so­
cietal discrimination” may have been a force encouraging 
disparate treatment in many specific areas of human 
endeavor. The Council, however, was entirely concerned 
with discrimination discretely directed at minority con­
tractors, not with the general “ societal discrimination” 
that only coincidentally included contractors within its 
negative sweep.

HI.
I also think the majority completely misses the mark 

with its conclusion that the ordinance is not narrowly 
tailored to achieve its remedial goal.18 There is no ques­
tion, of course, that such tailoring is an essential element 13

discrimination directly contributed to the small percentage of public 
contracts awarded minority contractors. There, Justice Powell con­
curred in the Court’s judgment that upheld Congress’ ten-percent 
set-aside program for minority contractors.

13 As an alternative basis for its holding, the majority concludes 
that the ordinance is not narrowly tailored to the remedial goal of 
eliminating discrimination. It reasons that the thirty-percent 
minority set aside is over-inclusive and hypothesizes that in certain 
contracts the thirty-percent figure would have to be adjusted up­
ward. These conclusions of the majority lack evidentiary support; 
to use a phrase coined by the majority, they “emerged from the 
mists.”

In their opinions in Wygant, both Justices Powell and O’Connor 
reaffirmed the principle that the plaintiff bears the overall burden 
of proving the constitutional invalidity of an affirmative' action plan. 
Wygant, 106 S.Ct. at 1848 (plurality opinion); id. at 1856 (O’Con­
nor, J., concurring). In the present case, the plaintiff presented no 
evidence to the trial court to suggest that the thirty-percent; set 
aside was overbroad. The majority’s finding of over-inclusiveness, 
therefore, suffers from the same lack of a “ firm basis” that it 
erroneously imputes to the Council.



24a

of an affirmative action plan. In Fullilove, however, Jus­
tice Powell noted that the Supreme Court “has not re­
quired remedial plans to be limited to the least restrictive 
means of implementation.”  Fullilove, 448 U.S. at 508, 
100 S.Ct. at 2790 (Powell, J., concurring). Moreover, 
Justice Powell identified several considerations to guide 
the determination of whether the plan is sufficiently nar­
row, e.g., the duration of the plan, the availability of 
waiver provisions, the relationship between the percent­
age of minority workers to be employed and the percent­
age of minority group members in the relevant population 
of work force, and the effect on innocent third parties. 
448 U.S. at 510-11, 100 S.Ct. at 2791 (Powell, J., con­
curring). I am convinced that under these criteria the 
ordinance is sufficiently narrow.

The first two criteria need little discussion. The Rich­
mond Plan is designed to last only five years. Its waiver 
provisions were purposefully drawn to parallel those ap­
proved in Fullilove. Even the majority concedes, as it 
must, that these factors help narrow the scope of the 
ordinance.

The third criterion identified by Justice Powell requires 
a more detailed analysis. It must be conceded that a 
set-aside plan limited to the current percentage of minor­
ity contractors would not eliminate the present low level 
of minority participation in government contracting. In 
remedying the effects of discrimination, a program ob­
viously must set aside much more than two-thirds of one 
percent of subcontract work if it is to encourage minori­
ties to enter the contracting industry and encourage ex­
isting minority contractors to grow.14 See Fullilove, 448

14 The Supreme Court most recently approved a similar approach 
in United States v. Paradise, — — U.S. —-—, 107 S.Ct. 1053, 94 
L.Ed.2d 203 (U.S. 1987) where the evidence demonstrated that the 
Alabama Department of Public Safety steadfastly had resisted 
the promotion of black troopers. See also Johnson v. Santa Clara 
County,------ U.S. ——, 107 S.Ct. 1442, 94 L.Ed.2d 615 (U.S. 1987);



25a

U.S. at 513-14, 100 S.Ct. at 2792-93 (Powell, J., concur­
ring) (10% set-aside acceptable, where 17% of the popu­
lation and only 4j% of the contractors were minority 
group members) ; Schmidt v. Oakland Unified School 
Dist., 662 F.2d 550, 559 (9th Cir. 1981), vacated on 
other grounds, 457 U.S. 594, 102 S.Ct. 2612, 73 L.Ed.2d 
245 (1982) (25% goal acceptable in light of city’s 34.5% 
non-white population; decision vacated for failure to 
reach merits of state statutory issue prior to deciding 
constitutional claim) ; Southwest Washington Chapter, 
Nat’l Elec. Contractors Ass’n v. Pierce County, 100 
Wash.2d 109, 667 P.2d 1092, 1101 (1983) (MBE par-

Local 28 of the Sheet Metal Workers Int’l Ass’n v. EEOC,------ U.S.
------ , 106 S.Ct. 3019, 3050-51, 92 L.Ed.2d 344 (1986). Although
approaching the problem in a different procedural context, the de- 

. cision in Paradise demonstrated the propriety of a temporarily im­
posed overrepresentation to< meet a long-range goal. After con­
siderable litigation, the district court ruled that fifty percent of all 
promotions from trooper to corporal must be from a, labor pool 
consisting of black troopers, even though that pool consisted of only 
twenty-five percent of the total trooper pool. Responding to the 
Department’s argument that this exceeded a statistical balance by 
twice, the Court said:

The Government suggests that the one-for-one requirement 
is arbitrary because it bears no relationship to the 25% minor­
ity labor pool relevant here. This argument ignores that the 
50% figure is not itself the goal; rather it presents the speed 
at which the goal of 25% will be achieved. The interim require­
ment of one-for-one promotion . . . would simply have deter­
mined how quickly the Department progressed toward this 
ultimate goal.

Although the appropriate ratio here “necessarily involvefd] 
a degree of approximation and imprecision,” Teamsters v. 
United States, 431 U.S. 324, 372 [97 S.Ct. 1843, 1873, 52 
L.Ed.2d 396] (1977), the District Court, with its first-hand 
experience of the parties and the potential for resistance, im­
posed the requirement that it determined would compensate 
for past delay and prevent future recalcitrance, while not un­
duly burdening the interests of white troopers.

Paradise, ------ U.S. at —-—, 107 S.Ct. at 1070 (footnote omitted).



26a

ticipation goal of 11!% set at slightly less than county’s 
minority population held acceptable). Common sense dic­
tates that judging the set-aside percentage by referring 
to the small proportion of existing MBEs in the economy 
would perpetuate rather than alleviate past discrimina­
tion.

As to Justice Powell’s last suggested criterion, i.e., the 
effect on innocent third parties— the favoring of a per­
centage of minority contractors will, of course, disfavor 
a percentage of nonminority contractors. That is the 
negative side of the necessary balancing in any affirma­
tive action program: “ innocent persons may be called 
upon to bear some of the burden” of remedying the ef­
fects of discrimination. Wygant, 106 S.Ct. at 1850 (plu­
rality opinion). Here, however, as with hirings in em­
ployment cases (as opposed to layoffs), the result is not 
to deprive a nonminority member of something already 
possessed but to limit temporarily a future opportunity. 
This distinction has been noted with approval in a num­
ber of Supreme Court cases. In Wygant, for example, 
Justice Powell said:

In cases involving valid hiring goals, the burden to 
be borne by innocent individuals is diffused to a con­
siderable extent among society generally. Though 
hiring goals may burden some innocent individuals, 
they simply do not impose the same kind of injury 
that layoffs impose. Denial of a future employment 
opportunity is not as intrusive as loss of an existing 
job.

106 S.Ct. at 1851 (plurality opinion) (emphasis in orig­
inal). The ordinance is narrowly drawn; it satisfies all 
of the Fullilove criteria.

For all these reasons, I would affirm the judgment of 
the district court.



27a

UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT

APPENDIX B

No. 85-1002 (L)
No. 85-1041

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

versus

Cit y  op R ich m o n d ,

Appellant,

Appellee.

A ssociated Gen eral  Contractors op A m erica ,
Amicus Curiae.

On Petition for Rehearing with Suggestion 
for Rehearing In Banc

[Filed Sept. 18, 1987]

ORDER

The appellee’s petition for rehearing and suggestion 
for rehearing in banc were submitted to this Court. In 
a requested poll of the Court, Judges Winter, Phillips, 
Murnaghan, Sprouse, Ervin voted to rehear the case in 
banc; and Judges Russell, Widener, Hall, Chapman,



28a

Wilkinson and Wilkins voted against rehearing the case 
in banc. As a majority of the judges voted to deny re­
hearing in banc, and

As the panel considered the petition for rehearing, 
Judge Hall and Judge Wilkinson are of the opinion that 
it should be denied and Judge Sprouse is of the opinion 
it should be granted;

IT IS ADJUDGED AND ORDERED that the petition 
for rehearing and suggestion for rehearing in banc are 
denied.

IT IS FURTHER ORDERED that the motion of the 
National Lawyers Committee for Civil Rights Under 
Law for leave to file brief as amicus curiae is granted.

Entered at the direction of Judge Sprouse, with the 
concurrence of Judge Hall and Judge Wilkinson.

For the Court,

/ s /  John M. Greachen 
Clerk



29a

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT

APPENDIX C

Record No. 85-1002 (L)

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

v.

Cit y  of R ich m o n d ,

Appellant,

Appellee.

Record No. 85-1041

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

v.

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

Appeals from the United States District Court for the 
Eastern District of Virginia, at Richmond 

Robert R. Merhige, Jr., District Judge

NOTICE OP APPEAL
Notice is hereby given, in accordance with United 

States Supreme Court Rule 10, that the City of Richmond



30a

appeals to the United States Supreme Court from the 
final judgment entered in this action on July 9, 1987, 
upon denial of the City’s timely petition for rehearing by 
order dated September 18, 1987. Appeal to the United 
States Supreme Court is taken under the authority of 
28 U.S.C. Section 1254(2).

Respectfully submitted,

C it y  of R ich m on d

By: / s /  Michael L. Sarahan 
Of Counsel

Drew St. J. Carneal 
City Attorney

Michael L. Sarahan 
Assistant City Attorney

Michael K. Jackson
Assistant City Attorney

Room 300—City Hall 
900 East Broad Street 
Richmond, Virginia 23219 
(804) 780-7940

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Notice 

of Appeal was mailed, postage pre-paid, to Walter H. 
Ryland, Esquire, WILLIAMS, MULLEN, CHRISTIAN 
& DOBBINS, P.O. Box 1320, Richmond, Virginia 23210, 
to Michael E. Kennedy, Esquire, 1957 E. Street, N.W., 
Washington, D.C. 20006 and to James E. Coleman, Jr., 
WILMER, CUTLER & PICKERING, 2445 M Street, 
N.W., Washington, D.C. 20037-1420, on this the 18th 
day of November, 1987.

/s /  Michael L. Sarahan



31a

IN THE
SUPREME COURT OF THE UNITED STATES

APPENDIX D

No. 85-1345

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

v.

City  op R ich m on d

Case below, 779 F.2d 181.
July 7, 1986. On petition for writ of certiorari to the 

United States Court of Appeals for the Fourth Circuit. 
The petition for writ of certiorari is granted. The judg­
ment is vacated and the case is remanded to the United 
States Court of Appeals for the Fourth Circuit for fur­
ther consideration in light of Wygant v. Jackson Board
of Education, 476 U.S. ------ , 106 S.Ct. 1842, 90 L.Ed.2d
260 (1986).