Amicus Curiae Brief — City of Richmond v. J. A. Croson Co.

: Searatee Court, U.S.

No. 87-998 ,

wt eee

APR 21 1988

IN THE

~— : E. SPAMOL, JR,

Supreme Court of the UniteseStatewerc a

OCTOBER TERM, 1987

a

CITY OF RICHMOND,

Appellant,

J. A. CROSON COMPANY.

ON APPEAL FROM THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF AMICUS CURITAE OF THE AMERICAN CIVII

LIBERTIES UNION, THE ACLU OF VIRGINIA, AND

THE ACLU OF NORTHERN CALIFORNIA

IN SUPPORT OF APPELLANT

Edward M. Chen

(Counsel of Record)

ACLU of Northern Calif

Foundation

1663 Mission Street

San Francisco, CA 94103

(415) 621-2488

Steven R. Shapiro

John A. Powell

Jacqueline A. Berrien

American Civil Liberties

John Hart Ely Union Foundation

1135 Palomar Drive 132 West 43 Street

Redwood City, CA 94062 New York, NY 10036

(415) 368-7358 (212) 944-9800

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ......-.-« ~~ iii

INTEREST OF AMICI ‘oe oe a a er a 1

SUMMARY OF ARGUMENT .......«. « 2

ARGUMENEL © © © «© © © e© © © © © © ee 4

Le THE COURT SHOULD APPLY INTER-

MEDIATE SCRUTINY IN EVALUATING

RICHMOND'S MINORITY SET-ASIDE

PRUGRAM © © © © eo ee ew ew et ltl le 4

A. Applying Strict Scrutiny In

This Case Would Turn The

Equal Protection Clause On

Ite Heagd .+« «see © © @ « 6

B. Applying Strict Scrutiny In

This Case Would Subvert The

Rationale of the Suspect

Classification Doctrine .. 9

Sa Applying Strict Scrutiny In

This Case Creates An

[llogical Paradox Under

Equal Protection Law... . 16

Il. THE DECISION BELOW MISINTER-

PRETS THIS COURT'S HOLDING

BN WEGRNEL © eo we ew ewe ew ew ew tl tl tl wl tw CAG

A. The Special Burden Of A Layoff

7 «= 6s 6 6 & «8 « @ @ « 19

"ONCLUSION

Wygant's Reference to

Societal Discrimination

Does Not Apply To The Facts

Of This Case > «

Wygant's Reference To Past

Discrimination By the

Governmental Unit Adopting

An AffirmativeAction Plan

Should Not Be Applied

Outside The Layoff

Context 2 e

il

Page

22

33

TABLE OF AUTHORITIES

Page

Cases

Associated General Contractors of

California, Inc. v. City and

County of San Francisco,

813 F.2d 922 (9th Cir. 1987) ...... 17

Brown v. Board of Education,

|) eo

Buckley v. Valeo,

EE ee ee eee

Califano v. Webster,

|

Castaneda v. Partida, _

430 U.S. 482 (1977) oe © «¢ © «© « «© co SA

Cleburne v. Cleburne Living Center,

ae | a |

Dayton Board of Education

v. Brinkman,

eee

Firefighters v. Stotts,

ES Ee

Franks v. Bowman Transportation,

a” rr \

Fullilove v. Klutznick,

448 U.S. 448 (1980). ..... .. . passim

iii

Hernandez v. Texas,

347 U.S. 475 (1954) o ¢- 6 6 » © ¢ © @ 6 an

Johnson v. Santa Clara

Transportation Agency,

_— < eer

107 S.Ct. 1442 (1987) o «© « «© « 42, 44, 46

Jones v. Alfred H. Mayer Co.,

392 U.S. 409 (1968) “i a oe a or ae ae ee ee

Local 28 of Sheet Metal Workers'

Intern. Ass'n v. E.E.O.C.,

478 U.S. ___,

106 S.Ct. 3019 (1986) se 6s oe oes a

Loving v. Virginia,

"SF SY eee ee

McDaniel v. Barresi,

oe SS 8) eae

North Carolina State Board

of Education v. Swann,

i Oa a} ly * ee ee) |

Ohio Contractors v. Keip,

713 F.2d 167 (6th Cir. 1983) ... . 35, 39

Plessy v. Ferguson,

163 U.S. 537 (1896) ices = & « & 2 =

Regents of the University

of California v. Bakke,

438 U.S. 265 (1977). ....... . passim

iv

San Antonio Independent School

District v. Rodriguez,

ie 8 Be 8 8=—o a |

South Florida Chapter v.

Metropolitan Dade County,

723 F.2d 846 (llth Cir. 1984) .. . 20, 41

Steelworkers v. Weber,

Vig = ee 8 l eee ee ee

Swann v. Charlotte-Mecklenburg

Board of Education,

ft Be. eee

The Slaughterhouse Cases,

83 U.S. (16 Wall) 36 (1872) ...... 7

U.S. v. Paradise,

480 U.S. ;

107 S.Ct. 1053 (1987) ..... +. + 20, 50

United Jewish Organizations v. Carey,

650 Use BOO CHeTTh 6 6 6 0 oe ee ts O84

United States v. Carolene Products,

304 U.S. 144 (1938) »seeeee¢*s @ « 6 Be

Washington v. Davis,

cf ee Ct Ce

Williams v. Virkovich,

720 F.2d 909 (6th Cir. 1983) ...... 47

Wygant v. Jackson Board

of Education,

476 U.S. 267 (1986). ...... . -. passim

Page

Legislative History

Hearing on Adoption of Minority

Business Utilization Plan,

Richmond, Virginia City Council

i 4) Oe ee ee ee |

Other Authorities

J. TenBroek,

Equality Under Law (1965) see esses ©

Schnapper, "Affirmative Action

and the Legislative History of

the Fourteenth Amendment,"

71 Va.L.Rev. 753 (1985) .......97, 8

Sullivan, Supreme Court Forward:

"Sins of Discrimination - Last

Term's Affirmative Action Cases,"

100 Harv.L.Rev. 78 (1987) © © © «© «© «© « 42

United States Commission on

Civil Rights, Minorities and

Women as Government Contractors

") .. arr | oe

vi

INTEREST OF AMICI

The American Civil Liberties Union

(ACLU) is a nationwide, non-partisan

organization dedicated to the principles of

liberty and equality embodied in the

Constitution. The ACLU of Northern

California and the ACLU of Virginia are two

of its statewide affiliates.

This case involves a constitutional

challenge to a remedial program adopted by

the City of Richmond to provide employment

opportunities for minority-owned

businesses. Because the ACLU believes such

programs are not only permissible, but

indispensable, if the nation is to fulfill

the promise of equality contained in the

Fourteenth Amendment, we submit this brief

in support of petitioners and urge this

Court to reverse the decision below.

SUMMARY OF ARGUMENT

This Court has yet to decide the

proper constitutional analysis applicable

to voluntary race-conscious affirmative

action programs. In our view, such

programs should be subject to intermediate

scrutiny rather than the strict scrutiny

applied in reviewing statutory schemes that

reflect an invidious intent.

As this Court has repeatedly

recognized, efforts to remedy past

discrimination must often employ race-

conscious criteria. E.g., Fullilove v.

Klutznick, 448 U.S. 448, 482 (1980). "Any

other approach would freeze the status quo

that is the very target of all

desegregation processes." McDaniel v.

Barresi, 402 U.S. 39, 41 (1971).

Applying strict scrutiny to locally-

enacted affirmative action plans would turn

the Equal Protection Clause on its head,

barring local governments from voluntarily

and effectively responding to persistent

racial disparities within their

communities. It also produces the

paradoxical result that affirmative action

plans designed to assist those "discrete

and insular minorities" who have suffered

the greatest discrimination are most

vulnerable to attack.

In addition, the decision below

perverts basic notions of federalism.

After Fullilove, the federal government may

require localities to adopt a minority set-

aside program as a condition of a federal

grant. Yet, when the same locality adopts

the same set-aside program without federal

funding, it risks running afoul of the

decision below.

Finally, the decision below

misinterprets the holding of Wygant v.

Jackson Board of Education, 476 U.S. 267

(1986). Nothing in Wygant bars a locality

from adopting a minority set-aside program

in response to clear evidence that public

construction contracts were not being

awarded to minority businesses. Indeed,

Wygant approvingly cites the federal set-

aside program upheld in Fullilove, which

served as a model for Richmond's plan in

this case.

ARGUMENT

I. THE COURT SHOULD APPLY INTERMEDIATE

SCRUTINY IN EVALUATING RICHMOND'S

MINORITY SET-ASIDE PROGRAM

A majority of this Court has not yet

agreed on the standard of review when

affirmative action plans are challenged as

racially discriminatory under the equal

protection clause. Several Justices have

utilized the so-called intermediate

standard applied to gender discrimination

cases; i.e., the plan "must serve important

governmental objectives and must be

substantially related to achievement of

those objectives."1 Other Members of the

Court have applied strict srutiny,

requiring the government to show that its

program is narrowly tailored to serve a

sompelling interest.

1 Regents of the University of

California v. Bakke, 438 U.S. 265, 359

(1977) (Brennan, White, Marshall, and

Blackmun, JJ.); Fullilove v. Klutznick, +48

U.S. at 519 (Brennan, Marshall, and

Blackmun, JJ.).

“ Bakke, 438 U.S. at 306 (Powell, J.);

Fullilove, 448 U.S. at 496 (Powell, J.);

Wygant, 476 U.S. at 273 (Powell, Burger,

Rehnquist, and O'Connor, JJ.) Even the

definition of strict scrutiny as applied to

affirmative action has defied clear

standards. In Bakke, Justice Powell

referred to the need for a "substantial"

(continued...)

We recognize, of course, that these

distinctions are fine ones. Nevertheless,

they have important substantive

consequences in constitutional

adjudication. They also have symbolic

importance. Simply put, efforts to assist

traditionally disadvantaged and

historically oppressed minorities should

not be treated with the same judicial

skepticism as efforts to perpetuate the

stigma of inferiority that the Civil War

amendments were designed to eliminate.

A. Applying Strict Scrutiny In

This Case Would Turn The Equal

Protection Clause On Its Head

The “pervading purpose" of the

Fourteenth Amendment was to eliminate the

oppression of historically subjugated

2(...continued)

interest. 438 U.S. at 306. In Wygant, he

would have required a "compelling"

governmental interest. 476 U.S. at 273.

minorities and to provide them with

“equality of economic opportunity."

Fullilove, 448 U.S. at 489. See also The

Slaughterhouse Cases, 83 U.S. (16 Wall)

36, 69 (1872). A properly drawn

affirmative action plan is not inconsistent

with these purposes. To the contrary, it

promotes then.

This relationship was well understood

by the Thirty-Ninth Congress, which

proposed the Fourteenth Amendment. At the

same time, it also enacted a series of

measures to aid the newly freed slaves,

including creation of the Freedman's

Bureau, special assistance for black

servicemen, and special relief to blacks in

the District of Columbia.? Then, as now,

3 See generally Schnapper, "Affirmative

Action and the Legislative History of the

Fourteenth Amendment," 71 Va.L.Rev. 753

(1985).

those programs were challenged as

preferential to blacks.* One of the

purposes of the Fourteenth Amendment,

however, was to answer those objections. >?

The argument that affirmative action

and invidious discrimination must be

treated equivalently under the Fourteenth

Amendment is historically insupportable.

It is also logically perverse. As this

Court observed in rejecting the claim that

voluntary affirmative action plans were

barred by Title VII:

It would be ironic indeed if a

law triggered by a Nation's

concern over centuries of racial

injustice and intended to improve

the lot of those who had "been

excluded from the American dream

for so long," constituted the

first legislative prohibition of

4 Id. at 763.

> see J. TenBroek, Equality Under Law 201

(1965).

all voluntary, private, race-

conscious efforts to abolish

traditional patterns of racial

segregation and hierarchy.

Steelworkers v. Weber, 443 U.S. 193, 204

(1979) (citation omitted).

Using the strict scrutiny standard of

the equal protection clause to review

affirmative action plans represents an even

greater irony, whose consequences are both

far-reaching and not amenable to

legislative response.

B. Applying Strict Scrutiny In This

Case Would Subvert The Rationale of

the Suspect Classification Doctrine

There is no "fundamental right" to

contract with the City of Richmond, on

public construction projects or otherwise.

Thus, the only possible rationale for

applying strict scrutiny to Richmond's set-

aside program is that it is based on the

"suspect" classification of race.

The statement that all racial

Clasifications are constitutionally

"suspect" is akin to the statement that the

Constitution is "color-blind." Both are

useful aphorisms but neither, in fact,

accurately reflects the inescapable

complexity of consitutional principle.

This Court has specifically rejected the

notion, on several occasions, that remedial

programs must be "color-blind." E.g.,

Fullilove, 448 U.S. at 482; Swann v.

Charlotte~-Mecklenburg Board of Education,

402 U.S. 1 (1971) .® Likewise, racial

6 The reference to a "color-blind"

Constitution derives, of course, from

Justice Harlan's famous dissent in Plessy

Vv. Ferguson, 163 U.S. 537 (1896). Read in

context, however, it is clear that Justice

Harlan's objection to racial

Classifications was based on his view that

the Constitution forbid legislation that

assumed that "colored citizens are ‘

inferior," and that imposed upon them "a

badge of servitude." Id. at 560, 562.

Affirmative action plans, like Richmond's,

(continued...)

10

classifications are more or less "suspect"

depending on the purpose for which they are

developed and the characteristics of the

disadvantaged group.

The designation of certain "discrete

and insular" minorities as "suspect"

classes is conceptually linked to this

Court's perception that such minorities

operate at a disadvantage within the

political system for a host of reasons that

have nothing to do with their innate

abilities. United States v. Carolene

Products, 304 U.S. 144, 152 n.4 (1938).

Those concerns do not apply when, as

here, a law is challenged by members of the

political majority who have not been

"subjected to such a history of purposeful

6(...continued)

proceed on very different assumptions and

have very different goals.

11

unequal treatment, or relegated to such a

position of political powerlessness as to

command extraordinary protection from the

majoritarian political process." San

Antonio Independent School District v.

Rodriguez, 411 U.S. 1, 28 (1973). See

also Hernandez v. Texas, 347 U.S. 475

(1954).?

UY The fact that racial minorities may

constitute 50% of the general population in

some cities, as they do in Richmond, does

not automotically render whites a "discrete

and insular minority" invoking suspect

Classification analysis. Mere numerical

majority does not translate automatically

into political domination. See Castaneda

v. Partida, 430 U.S. 482, 530 (1977);

United Jewish Organizations v. Carey, 430

U.S. 144, 164 (1977). The political

strength of an identifiable group depends,

inter alia, on voting registration rates,

political cohesiveness and organization,

and, of course, economic resources. See

generally, Buckley v. Valeo, 424 U.S. 1

(1976) (per curiam). Moreover, the fact

that a local minority constitutes a

dominant group in the larger society is

relevant: their political vulnerability is

mitigated by the potential availability of

remediation and protection at the state or

(continued...)

12

"Discrete and insular"-minorities

also struggle with a unique badge of

inferiority imposed on them by history.

Recognizing that fact, this Court upheld

racial segregation in the public schools

not for the sake of “color-blindness"

itself, but because segregation generated

7(...continued)

federal level.

The decision below utilized the

population statistics in Richmond to

suggest that the set-aside program might

not be remedial at all but merely the "bald

dispensation[{] of public funds and

employment based on the politics of race."

822 F.2d at 1358. That concern is

unsupported by the record, which shows that

minority businesses had received less than

1% of the dollar value of all public

contracts awarded in Richmond. Moreover,

intermediate scrutiny is adequate to

protect against the sort of racial politics

feared by the Fourth Circuit. As framed by

Justice Brennan in Bakke, it requires a

"sound basis for concluding that minority

underrepresentation is substantial and

chronic, and that the handicap of past

discrimiration is impeding access of

minorities." 438 U.S. at 362.

13

among blacks "a feeling of inferiority as

to their status in the community that may

affect their hearts and minds in a way

unlikely ever to be undone... ." Brown

Vv. Board of Education, 347 U.S. 483, 495

(1954). Likewise, the anti-miscengenation

laws were struck down because they

represented "an obvious endorsement of

white supremacy." Loving v. Virginia, 388

U.S. 1, 11 (1967) (footnote omitted).

Laws that perpetuate a sense of racial

inferiority are neither the legal nor moral

equivalent of laws designed to relieve it.

There is no reason, therefore, for this

Court to subject them to the same level of

review under the equal protection clause.

It would be disingenous to pretend

that affirmative action plans have not been

controversial. But it is fair to say that

such plans do not, by and large, "reflect

14

prejudice and antipathy -- a view that

those in the burdened class are not as

worthy or deserving as others." Cleburne

v. Cleburne Living Center, 473 U.S. 432,

440 (1985). Surely, that difference has

constitutional significance that this Court

should acknowledge in applying the equal

protection clause. Cf. Washington v.

Davis, 426 U.S. 229 (1975) .8

8 As Justice Stevens noted in Wygant, 476

U.S. at 316:

There is .. . a critical

difference between a decision to

exclude a member of a minority race

because of his or her skin color and a

decision to include more members of

the minority in a school faculty for

that reason.

The exclusionary decision rests

on the false premise that

differences in race, or in the

color of a person's skin, reflect

real differences that are

relevant to a person's right to

share in the blessings of a free

society ... . The inclusionary

decision is consistent with the

(continued...)

15

e. Applying Strict Scrutiny In This

Case Creates An Illogical Paradox

Under Equal Protection Law

The automatic assumption that all

racial classifications must be judged by

one standard under the equal protection

clause -- whether their purpose is benign

or invidious -- creates an intolerable

paradox. Because of the rigors of strict

judicial scrutiny, government is least able

to help those groups that have historically

suffered the greatest discrimination. By

contrast, groups that are not deemed

"suspect" for constitutional purposes, are

more likely to receive the government's

aid.

8(...continued)

principle that all men are

created equal; the exclusionary

decision is at war with that

principle. One decision accords

with the Equal Protection Clause

of the Fourteenth Amendment; the

other does not.

16

This paradox was realized in

Associated General Contractors of

California, Inc. v. City and County of San

Francisco, 813 F.2d 922 (9th Cir. 1987)

(petition for rehearing and suggestion of

rehearing en banc pending). The Ninth

Circuit in that case upheld a portion of

San Francisco's ordinance setting aside a

percentage of city contracts to women-owned

businesses but struck down a similar

provision relating to minority-owned

businesses. The perverse outcome resulted

from the court's application of the

intermediate scrutiny to the Women Business

Enterprise provision, and strict scrutiny

to the Minority Business Enterprise

provision. It is hard to conceive how this

result couid possibly further the

historical purposes of the Fourteenth

Amendment.

17

II. THE DECISION BELOW MISINTERPRETS

THIS COURT'S HOLDING IN WYGANT

The affirmative action plan in Wygant

was struck down by this Court on three

principal grounds. First, it involved

layoffs rather than hiring or promotion.

Second, it was not conceived as a remedy

for past discrimination against non-white

teachers; instead, it was justified by

reference to society's generally

discriminatory attitude toward non-whites

and the corresponding need to provide non-

white students with role models. Third, it

was developed by the school board itself

and not by a legislative body with plenary

power.

None of these objections applies to

the Richmond plan at issue in this case.

To the contrary, that plan is essentially

indistiguishable from the federal set-aside

program upheld in Fullilove.

18

A. The Special Burden Of A Layoff Plan

This Court has consistently treated

preferential layoff schemes differently

than other affirmative action programs.

See e.g., Firefighters v. Stotts, 467 U.S.

561 (1984). The reason for that difference

was explained in Wygant: "While hiring

goals impose a diffuse burden, often

foreclosing only one of several

opportunities, layoffs impose the entire

burden of achieving racial equality on

particular individuals, often resulting in

serious disruption of their lives." 476

U.S. at 283 (footnote omitted).

By contrast, a minority set-aside

program does not violate any vested rights,

nor disrupt any "settled expectations," nor

is it likely to produce the psychological

dislocation associated with "[e)ven a

19

temporary layoff." Id.? Under the

Richmond plan, for example, the 30% set

aside applies only to subcontract dollars;

white contractors are not excluded from any

portion of the city's primary contracts.

They are eligible, as well, fora

substantial majority (70%) of the

subcontract dollars. Cf. U.S. v.

Paradise, 480 U.S. , 107 S.Ct. 1053

(1987) (approving court ordered one-to-one

ratio in promotions); Steelworkers v.

Weber, 443 U.S. 193 (1979) (approving 50%

hiring ratio). And they can participate in

the 30% set-aside through joint ventures or

49% ownership of minority business

enterprises. See South Florida Chapter v.

9 For the same reasons, the need for

strict scrutiny is significantly less in

this case than it might have been in

Wygant. See Point I, supra.

20

Metropolitan Dade County, 723 F.2d 846,

856, n.15 (11th Cir. 1984).

Moreover, the plan does not affect the

ability of white contractors to compete

for private contracts and other public

contracts. Cf. Fullilove, 448 U.S. at 514-

515 (Powell, J.) (10% federal set-aside

constituted only .25% of all funds expended

yearly on construction work in the United

States). It has a relatively brief

duration of only five years, contains

waiver provisions which parallel those

approved in Fullilove, and sets a

percentage level "roughly halfway between

the present percentage of minority

contractors and percentage of minority

group members." Fullilove, 448 U.S. at

513-514 (Powell, J.).

Obviously, there is a burden attached

to any affirmative action plan in the sense

21

that it involves a redistribution of

resources. Yet here, as in Fullilove, the

“actual burden shouldered by nonminority

firms is relatively light." Id. at 484

(footnote omitted). If that burden is now

deemed too great for the Constitution to

bear, then affirmative action plans

throughout the country are in jeopardy.

Nothing in Wygant compels that result.

B. Wygant's Reference to Societal

Discrimination Does Not Apply

To The Facts Of This Case

This Court's statement in Wygant that

"(sjocietal discrimination, without more,

is too amorphous a basis for imposing a

racially classified remedy," 476 U.S. at

276 (emphasis added), must be understood in

context. It appears in the midst of a

discussion by the Court of the "role model"

theory offered by the school board as the

basis for its layoff plan.

22

The Court perceived two problems with

the school board's approach in Wygant. It

had "no logical stopping point. . . [and]

allowfed] the Board to engage in

discriminatory hiring and layoff practices

long past the point required by any

legitimate remedial purpose." Id. at 275.

In addition, it might actually frustrate

efforts to remedy prior discrimination "by

justifying the small percentage of black

teachers by reference to the small

percentage of black students." Id. at 276.

The reference to "societal

discrimination" became a shorthand way of

expressing the notion that the rationale

for the layoff plan had only a tangential

relationship to the population of teachers

most affected by its implementation. In

classic constitutional terms, there was an

inadequate fit between means and ends. To

23

remedy one problem -- the absence of role

models -- the school board created another

problem -- the loss of seniority benefits.

[It was this incongruity that the Court was

unwilling to accept.

The Richmond set-aside plan is

entirely different in both its scope and

motivation. Unlike Wygqant, it does not

require year-by-year calibration. Id. at

275. More importantly, it does not suffer

the lack of focus that so disturbed the

Court in Wygant. Based on the evidence

before it, the Richmond City Council was

understandably concerned that minority

businesses had never been given a fair

Opportunity to compete for construction

contracts. In response, they adopted a

plan designed to remedy this specific

denial of equal economic Opportunity. See

Fullilove, 448 U.S. at 489. In short, the

24

nexus that was absent in Wygant -- and that

prompted the Court's comment about societal

discrimination -- is fully present here.1!°

Moreover, the concerns of the City

Council are amply supported by the record.

Contrary to the assertion of the majority

below, the City Council did not "rest on

broad-brush assumptions of historical

discrimination." 822 F.2d at 1357.

Instead, it relied upon uncontroverted

evidence that the city had awarded, and was

continuing to award, an infinitesimal

percentage of its construction contracts to

minority businesses. Furthermore, the city

Council reasonably concluded that past

discrimination within the construction

10 As in Fullilove, the 30% set-aside

figure adopted by the Richmond City

Council is “roughly halfway between the

present percentage of minority contractors

and percentage of minority group members.

448 U.S. at 513-14 (Powell, J.).

25

industry explained the virtual absence of

minority businesses from Richmond's

contract award recipients.11

The record thus establishes a nexus

between current underrepresentation of

minority owned businesses in the award by

Richmond of its public contracts and

identifiable racial discrimination in the

construction industry. No such nexus was

established between the percentage of

minority teachers and students in Wygant.

11 All three branches of the federal

government have recognized the history of

pervasive and universal discrimination in

the construction industry. See e.gq.,

Executive Orders Nos. 11246, 11458, 11518

and 11625; Fullilove, 448 U.S. at 456-472;

Steelworkers v. Weber, 443 U.S. at 198 n.1

("Judicial findings of exclusion from

crafts on racial grounds are so numerous as

to make such exclusion a proper subject for

judicial notice"). Nothing in the record

or common sense suggests that the City of

Richmond, Virginia was immune from the

nationwide phenomenon of race discrimina-

tion in the construction industry.

26

As this Court noted, that disparity is one

for which "there are numerous explanations

many of them completely unrelated to

discrimination of any kind." 476 U.S. at

276.

Summarizing the evidence developed by

the City Council at its legislative hearing

on the set-aside plan, the district court

wrote:

It was established at the

hearing that there were enormous

disparities between the percent-

age of construction contracts

awarded to minority businesses

(0.67%) and the percentage of

minorities in the Richmond popu-

lation (about 50%) over a five-

year period from 1978 to 1983

; It was further stated by

a city councilman and by the city

manager that there was discrimi-

nation and exclusion on the basis

of race kin the construction

industry. in both Richmond and

the state. There were a number

of representatives of contracting

associations present at the

hearing, none of which denied

this claim -- although some of

them asserted that their own

organizations did not dis-

27

criminate on the basis of race.12

Significantly, the 0.67% figure for

minority contracts in Richmond corresponds

almost precisely with the evidence

considered in Fullilove, which indicated

that less than i% of all federal

procurement contracts were going to

minority businesses. 448 U.S. at 459.13

The Fourth Circuit dismissed these

findings as legally insufficient after

Wygant on the spurious ground that the

Richmond City Council had based its set-

aside plan on "national findings," 822

F.2d at 1359-60, which were analogous to

le The district court's findings are set

forth in Appellant's Supplemental Appendix

to the Jurisdictional Statement, at 164-65

(hereinafter District Court Findings).

13 These percentages are measured in

terms of the dollar amount of the

contracts.

28

the evidence of societal discrimination

rejected in Wygant as a basis for

affirmative action.

In fact, the Richmond City Council did

not rely only on national findings.

Rather, the Council was prompted to act by

a congruence between the evidence elicited

at is own hearing and the congressional

tesimony cited in Fullilove.14 Moreover,

the so-called "national" findings

disparaged by the Fourth Circuit had direct

bearing on the situation in Richmond. As

Chief Justice Burger noted in Fullilove:

(T]he House Subcommittee on SBA

Oversight and Minority Enterprise

: took "full notice" .. . of

reports submitted to the Congress

by the General Accounting Office

and by the U.S. Commission on

Civil Rights . .. The Civil

Rights Commission report dis-

cussed at some length the

barriers encountered by minority

14 ee District Court Findings at 165.

29

businesses in gaining access to

government contracting oppor-

tunities at the federal, state,

and local levels.

448 U.S. at 465-67 (emphasis added).

Although much of this evidence related to

federal procurement, there was also "direct

evidence before the Congress that this

pattern of disadvantange and discrimination

existed with respect to state and local

construction contracting as well." Id. at

478.

In the same report, the Commission on

Civil Rights found that

State and local governments

spend proportionately more than

the Federal Government for

construction. Since a large

percentage of minority firms are

retail and small construction

companies . . . both the volume

and nature of State and local

contracting should provide

extensive contracting

opportunities for minority

[business enterprises]

The Federal Government has

attempted .. . to stimulate the

participation of minorities in

30

State and local contracting.

Federal efforts, however, have

not resulted in a significant

increase in State and local

contracting programs and awards

for minorities and women.1!°

Given its finding that women and

minorities were significantly

underrepresented in state and local

contracting, the Civil Rights Commission

recommended, inter alia, that "[s]tate and

local governments . . . establish special

contracting programs to increase contract

awards to minority and female-owned firms,"

and suggested that "mayors should review

existing procurement laws of their

jurisdictions and determine the extent to

15 United States Commission on Civil

Rights, Minorities and Women as Government

Contractors 122 (May 1975).

31

which these laws permit the establishment

of contract set-aside programs. "16

That is exactly what the Richmond

City Council did in this case. Relying on

Fullilove, it adopted a remedial plan that

addresses a documented problem of

discrimination within its local community.

As the district court found: "[T}he

evidence before the City Council when it

enacted the ordinance .. . confirms the

Plan's remedial goals."l/ Moreover, the

16 Id. at 139.

17 See District Court Findings at 164.

This conclusion is confirmed by the

testimony of the Richmond City Attorney who

testified before the City Council in

Support of the set-aside plan:

(Tj)he Supreme Court, when it approved

the ten per cent minority set-aside,

specifically said that the justifica-

tion was that it was remedial. We've

reviewed the statistics of the con-

struction contracts, and it certainly

justifies that... [Y]Jes, it is

(continued...)

32

plan's "remedial goals" and the evidence of

past discrimination before the Richmond

City Council, easily distinguish this case

from Wygant.

C. Wygant's Reference To Past Dis-

crimination By the Governmental

Unit Adopting An Affirmative

Action Plan Should Not Be Applied

Outside The Layoff Context

The Fourth Circuit erred in striking

down the Richmond set-aside plan on the

ground that voluntary, race conscious,

affirmative action programs initiated by a

state or local legislature must be

predicated on a showing of "prior

discrimination by the governmental unit

involved." 822 F.2d at 1358, quoting

Wygant, 476 U.S. at 274 (plurality

17(...continued)

remedial

Hearing on Adoption of Minority Business

Utilization Plan, Richmond, Virginia City

Council 8 (April 11, 1983) (transcript).

33

Opinion) (emphasis supplied in Croson).

First, there is at least as much

evidence of governmental discrimination in

this case as in Fullilove. Second, the

cited passage from Wygant did not command a

majority of the Court.18 Third, even the

plurality opinion in Wygant does not place

any such limit on the remedial power of

state and local legislatures, as opposed to

administrative bodies lacking plenary

lawmaking authority.19

18 Under intermediate scrutiny, a

finding of prior discrimination is not

required. Bakke, 438 U.S. at 369

(Brennan, J.); Califano v. Webster, 430

U.S. 313, 317 (1977).

19 The Richmond City Council is

authorized under Virginia law to enact the

city's Business Minority Utilization Plan,

and has specific institutional competence

to establish policies responsive to the

effects of discrimination. 779 F.2d at

184-186. Unlike the Board of Education in

Wygant or the Board of Regents in Bakke

whose, "broad mission is education, not the

(continued...)

34

Contrary to the approach of the court

below, Wygant need not and should not be

read as establishing an absolute rule that

state and local governments cannot engage

in affirmative action in their award of

public contracts absent evidence of their

own prior discrimination. Such a result

would be inconsistent with Fullilove,

19(.. .continued)

formulation of any legislative policy or

adjudication of particular claims of

illegality" (Bakke, 438 U.S. at 309), the

Richmond City Council is not an “isolated

segment" within a vast governmental

structure, but the plenary law-making body

of the local sovereignty with the

"authority and capability to establish

that the classification is responsive to

identified discrimination." Bakke, 438

U.S. at 309 (Powell, J,). Its authority to

set broad social policy and to fashion

local legislation in response to the local

impact of discrimination is essentially the

same as Congress' role in the federal

government. See Ohio Contractors v. Keip,

713 F.2d 167, 172 (6th Cir. 1983). Cf.

Fullilove, 448 U.S. at 503 n.4 (Powell, J.,

concurring) ("a court should uphold a

reasonable congressional finding of

discrimination") (emphasis added).

35

which invalidated federal set-aside

legislation without any showing that the

meager participation of minority-owned

businesses in federally funded public

contracts was the result of prior unlawful

discrimination by the federal government or

any other governmental unit. Congress

merely found the disparity was the result

of

barriers to competitive access

which had their roots in racial

and ethnic discrimination, and

which continue today, even absent

any intentional discrimination or

other unlawful conduct.

448 U.S. at 478 (emphasis added).

It is clear from the legislative

history that the congressional decision to

adopt a federal set-aside program was

prompted as much by concern over

discriminatory practices in the private

sector as any record of past governmental

discrimination. The 1977 Report of the

36

House Committee on Small Business, cited

the Court in Fullilove, summarized the

problem Congress was addressing:

The very basic problem disclosed

by the testimony is that - over

the years_- there has developed a

business system which has tradi-

tionally excluded measurable

minority participation. In the

past more than the present, this

system of conducting business

transactions overtly precluded

minority input. Currently, we

more often encounter a business

system which is racially neutral

on its face, but because of past

overt social and economic dis-

crimination is presently opera-

ting, in effect, to perpetuate

these past inequities.

448 U.S. at 466 n.48 (citation omitted) .2

Nothing in Fullilove even remotely

suggests that its holding is limited to

20 The result in Fullilove is justified

not only by the Fourteenth Amendment's

"century-old promise of equality with

opportunity," 448 U.S. at 463, but also

the fact that Civil War Amendments were

intended to remediate both state and

private discrimination. See Jones v.

Alfred H. Mayer Co., 392 U.S. 409, 441-43

37

by

0

(1968).

congressional action. Nor would any such

limitation make sense. If Congress has the

power to respond to documented

discrimination in a particular industry --

and to require the states to respond as a

condition of receiving federal money --

then state and local legislatures must have

the same power to respond to local problems

without federal prodding.

To hold otherwise would totally

distort the principles of federalism. As

Justice Brennan observed in Bakke:

[W]e see no reason to conclude

that the States cannot

voluntarily accomplish under

Section 1 of the Fourteenth

Amendment what Congress under

Section 5 of the Fourteenth

Amendment validly may authorize

or compel either the States or

private persons to do. A

contrary position would conflict

with the traditional

understanding recognizing the

competence of the States to

initiate measures consistent with

federal policy in the absence of

congressional pre-emption of the

38

subject matter. Nothing whatever

in the legislative history of

either the Fourteenth Amendment

or the Civil Rights Acts even

remotely suggests that the States

are foreclosed from furthering

the fundamental purpose of equal

opportunity to which the

Amendment and those Acts are

addressed. Indeed, voluntary

initiatives by the States to

achieve the national goal of

equal opportunity have been

recognized to be essential to its

attainment.

438 U.S. at 368.21

Such a limitation upon the power of

state and local legislatures to act in

response to discrimination not of its own

making would be unprecedented. This Court

21 Nor can Fullilove be distinguished on

the basis of Congress' enforcement power

under Section 5 of the Fourteenth

Amendment. The plurality opinion relied on

Section 5 as authority only for the federal

government's imposition of affirmative

action on state and local governmental

grantees, not for its substantive power to

affect private rights. Fullilove, 448 U.S.

at 476-78. See Ohio Contractors

Association v. Keip, 713 F.2d 167, 172 (6th

Cir. 1983).

39

has never doubted the power of state and

local government to implement race-

conscious integration of public schools in

the absence of proven governmental

discrimination. McDaniel v. Barresi, 402

U.S. 39, 41 (1971)? Swann v. Charlotte-

Mecklenberg, 401 U.S. 1, 16 (1971).

State and local governments

unquestionably have had the power to

correct racial imbalances resulting from de

facto segregation, even where the federal

courts could not have constitutionally

ordered a race-conscious remedy under

Dayton Board of Education v. Brinkman, 433

U.S. 406, 420 (1976). See Kromnick v.

School District of Philadelphia, 739 F.2d

894, 897 (3rd Cir. 1984); Jackson v.

Pasadena City School District, 59 Cal.2d

876, 881, 382 P.2d 878 (1963). Indeed,

this Court has invalidated attempts to

40

limit such local power. Washington v.

Seattle School District, 458 U.S. 457

(1982); North Carolina State Board of

Education v. Swann, 402 U.S«s« 43, 45 (1971).

The power of state and local

governments to engage in race-conscious

remediation despite the lack of any

evidence of direct governmental culpability

has been upheld in other contexts as well.

United Jewish Organizations v. Carey, 430

U.S. 144, 157 (1977); South Florida

Chapter v. Metropolitan Dade County, 723

F.2d 846, 853 (11th Cir. 1984).

Restricting a local government to the

narrow remedial purpose of redressing only

its unlawful discrimination would

drastically and unnecessarily limit

governmental efforts to "effectuate the

constitutional mandate for equality of

economic opportunity." Fullilove, 448 U.S.

41

at 489. Moreover, "[a] requirement that an

employer actually prove that it had

discriminated in the past would

unduly discourage voluntary efforts to

remedy discrimination." Johnson v. Santa

Clara Transportation Agency, _—'U.S«. —_sSss,

107 S.Ct. 1442, 1463 (1987)(O'Connor, J.,

concurring) .*¢

Under the panel's interpretation of

Wygant, local legislatures would be

powerless to remedy the lingering effects

of pervasive, identifiable, and even proven

race discrimination in the private sector

absent substantial evidence that the

oe See also Sullivan, Supreme Court

Forward: "Sins of Discrimination - Last

Term's Affirmative Action Cases," 100

Harv.L.Rev. 78, 92 (1987) ("even without

formal findings .. . the task of self-

judgment and self-condemnation in any form

casts a chill over efforts to implement

affirmative action voluntarily") (emphasis

in original).

42

governmental unit involved itself

discriminated. Indeed, local legislatures

would be powerless to act even where it is

clear that race-neutral remedies alone

would not be effective. 23

Imposing such a constitutional

straitjacket on state and local

legislatures would have the ultimate effect

of perpetuating historical patterns of

discrimination. Under the panel's ruling

in this case, the government could not

engage in affirmative action, even undexr

the more generous “arguable violation"

standard, unless it first established a

23 Cf. Local 28 of Sheet Metal Workers'

Intern. Ass'n v. E.E.O.C., 478 U.S. ___,

106 S.Ct. 3019, 3051 (1986) (affirmative

action may be necessary to dissipate the

lingering effects of pervasive

discrimination, such as where union's

reputation for discrimination operated to

discourage minorities from even applying

for membership).

43

statistical disparity between the

percentage of minorities selected and

percentage of minorities in the relevant

pool. See Johnson, 107 S.Ct. at 1462-65,

(O'Connor, J., concurring); Wygant, 476

U.S. at 292 (O'Connor, J., concurring).

Where minorities have been excluded from

the relevant pool as a result of prior

discrimination, tying the permissible units

of affirmative action to the composition of

the pool would lock the locality into

perpetuating the existing disparity:

a proof scheme requiring a

comparison of the percentage of

contracts awarded with this small

qualified pool of minority

contractors would ensure the

continuation of a systemic fait

accompli, perpetuating a

qualified minority contractor

pool that approximates two-third

of one percent of the overall

contractor pool... . Common

sense dictates that judging the

set-aside by referring to the

small proportion of existing

MBE's in the economy would

44

perpetuate rather than alleviate

past discrimination.

822 F.2d at 1365, 1367 (Sprouse, J.,

dissenting). -

._Moreover, such a requirement creates a

"gross anomaly" that the greater the

effectiveness of historical non-

governmental discrimination in excluding

minorities from the relevant pool, the less

room local legislatures have to act:

"truly pernicious discrimination could have

the compound effect of blocking remedial

action." Id. at 1365 n.11 (Sprouse, J.,

dissenting). Certainly, such a perverse

result is not countenanced by the equal

protection clause, and Wygant should not be

read as dictating such a result.

The panel majority below justified its

interpretation of Wygant by reasoning that

absent a particularized showing of past

governmental discrimination, the

45

government's motive for establishing an

affirmative action program is necessarily

Suspect. 822 F.2d at 1358. It is simply

irrational to presume, as did the panel

below, that an affirmative action program

not predicated on a particularized showing

of past governmental discrimination

represents "an abuse of the political

process rather than remedial action." 779

F.2d at 203 (Wilkinson, J., dissenting).

An affirmative action program may be

implemented for a variety of legitimate

reasons, such as eliminating a "work force

imbalances in traditionally segregated job

categories." Johnson, 107 S.Ct. 1442, 1455

(O'Connor, J., concurring). Moreover, a

program may be established for legitimate

"forward-looking considerations". See id.

at 1460 (Stevens, J., concurring) .

46

In addition to the goal of redressing

the effects of identifiable discrimination

in the construction industry, representa-

tive bodies such as the Richmond City

Council have a particularly compelling

interest in taking affirmative steps to

avoid perpetuating racial disparities in

the conduct of its business. The net

effect of awarding public contracts to the

near total exclusion of minority-owned

businesses is to redistribute public moneys

from economically disadvantaged blacks (who

pay taxes like everyone else) to his-

torically advantaged whites. This

exacerbation of the malapportionment of

economic resources perpetuates the fact

and perception of unfairness and destroys

community trust in the government.

Williams v. Virkovich, 720 F.2d 909, 923-

47

924 (6th Cir. 1983). The "'exclusion of

minorities from effective participation

creates mistrust, alienation, and

all too often hostility toward the entire

process of government.'" Wygant, 476 U.S.

at 290 (O'Connor, J., concurring), quoting

S. Rep. No. 415, 92d Cong., 1st Sess. 10

(1971).

Richmond also had a substantial

interest in removing barriers to

competition in the construction industry

caused by the prior exclusion of minorities

therefrom. By taking immediate steps to

facilitate the competiteveness and

experience of minority businesses under the

Minority Business Utilization Plan, the

City will, in the long run, enhance the

overall competitiveness of the construction

industry and hence the efficiency of its

bidding process. See 779 F.2d at 185.

Moreover, like Congress' set-aside

legislation, the effect of the Plan was to

"direct funds into the minority business

community, a sector of the economy sorely

in need cf economic stimulus." Fullilove,

448 U.S. at 459.

The severe limitation placed on

permissible affirmative action by the panel

--restricting race-specific set-asides to

remedying Richmond's own prior

discrimination -- is supported by neither

logic, *4 policy, nor previous decisions of

24 From the perspective of non-minority

contractors who bear the burden of the set-

aside, it matters little whether the

governmental unit involved engaged in past

discrimination. Their burden is the same.

See Bakke, 438 U.S. at 365 (Brennan, J.).

Cf. Franks v. Bowman Transportation, 474

U.S. 747 (1976).

Where current disparities are attrib-

utable to past identifiable discrimination,

be it private or public discrimination,

non-minority businesses "may have reaped

competitive benefit over the years from the

(continued...)

49

this Court. See Bakke, 438 U.S. at

(medical school affirmative action

admissions policy justified by diversity

of student body); Paradise, 107 S.Ct. at

1065 n.18 (affirmative action in hiring of

law enforcement personnel may be justified

by its restoration of "community trust in

the fairness of law enforcement" and

facilitation of effective police service in

encouraging citizen cooperation); Wygant,

476 U.S. at 286 (O'Connor, J., concurring)

(opinion does not foreclose possibility

that “other governmental interests which

have been relied upon in the lower courts

24(.. continued)

virtual exclusion of minority firms" from

contracting opportunities." Fullilove, 448

U.S. at 485 (Burger, Ch.J.). See also

Bakke, 438 U.S. at 365-66 (Brennan, J.)

Hence, affirmative action has an equitable

basis where there are continuing effects of

prior discrimination regardiess of whether

the discrimination was private,

governmental, or both.

50

but which have not been passed on here to

be sufficiently ‘important' or 'compelling'

to sustain the use of affirmative action

policies").

In the words of one noted commentator:

"(T)he federal government alone cannot be

expected tc eradicate racial discrimination

in America. Public institutions at all

levels must contribute to the effort. They

are often in a better position to

tailor corrective programs than is

Congress. They should not be disqualified

from this endeavor." Days, Fullilove, 96

Yale L.J. 453, 478 (1987).

51

CONCLUSION

For the reasons stated herein, the

decision below should be reversed.

Respectfully submitted,

Edward M. Chen

(Counsel of Record)

ACLU of Northern

California Foundation

1663 Mission Street

San Francisco, CA 94103

(415) 621-2488

Steven R. Shapiro

John A. Powell

Jacqueline A. Berrien

American Civil Liberties

Union Foundation

132 West 43 Street

New York, New York 10036

(212) 944-9800

John Hart Ely

1135 Palomar Drive

Redwood City, CA 94062

(415) 368-7358