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

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Supreme Lourt, U3.

EILED

JUN 6 1988

No. 87-998

JOSEPH F. SPANIOL, JR.

- CLERK

In The —_

Supreme Court of the United States

October Term, 1987

CITY OF RICHMOND, VIRGINIA,

Appellant,

J. A. CROSON COMPANY,

Appellee.

On Appeal from the United States

Court of Appeals for the Fourth Circuit

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF APPELLEE

an +.

RONALD A. ZUMBRUN

*JOHN H. FINDLEY

*COUNSEL OF RECORD

Pacific Legal Foundation

555 Capitol Mall, Suite 350

Sacramento, California 95814

Telephone: (916) 444-0154

Attorneys for Amicus Curiae,

Pacific Legal Foundation

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

TABLE OF AUTHORITIES CITED

INTERESTS OF AMICUS

OPINION BELOW

STATEMENT OF THE CASE

SUMMARY OF THE ARGUMENT

ARGUMENT.

I TOSHOW THAT A RACE PREFERENTIAL

PLAN IS JUSTIFIED BY A COMPELLING

GOVERNMENTAL INTEREST, THE

STATE MUST FIRST MAKE A SHOWING

OF PRIOR DISCRIMINATION BY THE

GOVERNMENTAL UNIT INVOLVED

Il. MERE STATISTICAL EVIDENCE OF

SOCIETAL DISCRIMINATION IS NO’

SUFFICIENT TO SUSTAIN A RACIALLY

CONSCIOUS AFFIRMATIVE ACTION

PLAN

lil. A RACIAL CLASSIFICATION PLAN

DESIGNED TO REMEDY PAST ACTS OF

DISCRIMINATION MUST BE NARROWLY

TAILORED TO ACHIEVE THAT GOAL

CONCLUSION

TABLE OF AUTHORITIES CITED

Page

CASES

Associated General Contractors of California,

Inc. v. City and County of San Francisco,

813 F.2d 922 (9th Cir. 1987)......... 10, 11, 14, 15

Associated General Contractors of California v.

San Francisco Unified School District,

616 F.2d 1381 (9th Cir. 1980).................. 17

Firefighters Local Union No. 1784 v. Stotts,

G67 US. GER CROBED cc cdéccccsenceneneueee 15, 16

Fullilove v. Klutznick, 448 U.S. 448

CREEL 0 okndeceenesedeanee 6, 11, 12, 13, 15, 16

General Building Contractors Association, Inc.

v. Pennsylvania, 458 U.S. 375 (1982) ........ 13, 14

Hazelwood School District v. United States,

4339 UDB. SEO COG ehh ccccccctscoccunsesaee 9,10

Hirabayashi v. United States, 320 U.S. 81 (1943) ..... 6

International Brotherhood of Teamsters v.

United States, 431 U.S. 324 (1977).......... 10, 16

J. Edinger & Sons, Inc. v. City of Louisville,

Kentucky, 802 F.2d 213 (6th Cir. 1986)....... 7,11

Johnson v. Transportation Agency, 480 U.S. __,

04 L. BG. BS GES CEGSSD oc cccccccccusennentaeaal 10

Lovell v. City of Griffin, 303 U.S. 444 (1938) ....... 5

Loving v. Virginia, 388 U.S. 1 (1967) ............ 5, 6

Michigan Road Builders Association, Inc. v. Mil-

liken, 834 F.2d 583 (6th Cir. 1987) ............... 7

Personnel Administrator of Massachusetts v.

Feeney, 442 U.S.-256 (1979) ... 0... cccccccccnccces 6

eaiemeade ie

TABLE OF AUTHORITIES CITED —- Continued

Page

Regents of the University of California v. Bakke,

EE 5, 14, 18

Shelley v. Kraemer, 334 U.S. 1 (1948) .............. 6

Truax v. Raich, 239 U.S. SE 13

United States v. Paradise, 480 U.S. __, 94 L.

EE 4, & 14, 18

Wygant v. Jackson Board of Education, 476 U.S.

EE 4, 6, 7, 13, 15, 18

RULES

Supreme Court Rule No. 36............. ee. ol

MISCELLANEOUS

Ely, The Constitutionality of Reverse Racial Dis-

crimination, 41 U. Chi. L. Rev. 723 (1974).......15

> SF

No. 87-998

In The

Supreme Court of the United States

October Term, 1987

CITY OF RICHMOND, VIRGINIA,

Appellant,

J. A. CROSON COMPANY,

Appellee.

-—

On Appeal from the United States

Court of Appeals for the Fourth Circuit

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF APPELLEE

INTERESTS OF AMICUS

Pursuant to Supreme Court Rule No. 36, Pacific

Legal Foundation respectfully submits this brief

amicus curiae in support of appellee. Consent to the

filing of this brief has been granted by counsel for all

parties. Copies of the letters of consent have been

lodged with the clerk of this Court.

Pacific Legal Foundation is a nonprofit, tax-exempt

corporation, incorporated under the laws of California

for the purpose of participating in litigation affecting

public policy. Policy of the Foundation is set by a Board

of Trustees composed of concerned citizens, the major-

ity of whom are attorneys. The Board of Trustees evalu-

ates the merits of any contemplated legal action and

authorizes such legal action only where the Founda-

tion’s position has broad support within the general

community. The Foundation’s Board of Trustees has

authorized the filing of a brief amicus curiae in this

matter.

Pacific Legal Foundation has participated in cases

which involved issues similar to that presented in this

matter. The Foundation’s public policy perspective and

litigation experience in support of individual liberties

will help provide this Court with additional argument

in which to view the holding of the Fourth Circuit

Court of Appeals in this matter.

OPINION BELOW

The opinion of the United States Court of Appeals

for the Fourth Circuit is reported at 822 F.2d 1355

(4th Cir. 1987).

STATEMENT OF THE CASE

This case presents the issue whether a city may

enact a plan in which minority contractors are guaran-

teed a fixed percentage of city funded construction con-

tract awards to remedy alleged discrimination, in the

absence of a showing by the city that it engaged in such

prior discrimination.

In April, 1983, the City Council of Richmond, Vir-

ginia (City), enacted a minority business utilization

plan which required that contractors on city construc-

tion projects subcontract at least 30% of the dollar

value of the contract to minority-owned business enter-

prises (MBEs) unless the city waived the requirement.

The plan was to terminate in 1988 at which time the

City Council could renew it or allow it to lapse. Only

nonminority prime contractors were required to comply

with the plan’s provisions. If a nonminority contractor

failed to meet the MBE requirement the contract would

be suspended or terminated unless a waiver was

granted.

In September, 1983, the City invited bids for the

installation of stainless steel urinals and water closets

in the city jail. J. A. Croson Co., not itself an MBE, was

the only bidder on the project. Contending it was

unable to locate any minority subcontractors except one

it considered unqualified, Croson requested a waiver of

the MBE requirement. The City denied the waiver

request. Croson informed the City that the cost of the

project would increase by $7,663.16, if it were required

to use the unqualified contractor. The City responded,

stating the minority subcontractor was qualified and

that Croson’s fixed bid could not be increased.

Soon thereafter, the City rebid the project and

invited Croson to submit a new bid. Croson sued in

District Court, arguing the City’s racial set-aside plan

was contrary to Virginia law governing competitive bid

procedures and that it violated the United States Con-

stitution. The District Court held the City’s plan was

consistent with both Virginia law and the federal Con-

stitution. A divided panel of the Court of Appeals

(Fourth Circuit) affirmed. This Court granted certiorari

in the Croson case and remanded it back to the Court of

Appeals for reconsideration in light of the United

States Supreme Court’s decision in Wygant v. Jackson

Board of Education, 476 U.S. 267 (1986), decided by

this Court after the Court of Appeals’ affirmance. Fol-

lowing reconsideration, the Court of Appeals held the

City’s racial preference plan must be invalidated, and

reversed the District Court’s decision.

SUMMARY OF THE ARGUMENT

This case involves the issue of whether a govern-

ment enacted affirmative action plan that grants

racially-based preferences violates the Fourteenth

Amendment of the United States Constitution.

Pacific Legal Foundation believes that the key to

the validity of such affirmative action plans lies in the

adequacy of the findings necessary to support the plan.

Absent a clear showing of racial discrimination, a gov-

ernmentally imposed racial preference is an arbitrary

and capricious act and itself constitutes invidious

discrimination.

The findings necessary to support an affirmative

action plan must clearly demonstrate discrimination. A

mere statistical disparity has never been held sufficient

by this Court and, furthermore, such statistical evi-

dence must be relevant and clearly define the nature of

the discrimination and the parties discriminated

against.

The remedy afforded by an affirmative action plan

must be narrowly tailored to correct the past discrimi-

natory acts particularized in the findings. The Four-

teenth Amendment protects individual rights and does

not countenance group preference merely to obtain

racial balance or attain other political as opposed to

constitutional objectives.

. 4

ARGUMENT

TO SHOW THAT A RACE PREFERENTIAL

PLAN IS JUSTIFIED BY A COMPELLING

GOVERNMENTAL INTEREST, THE

STATE MUS™ FIRST MAKE A SHOWING

OF PRIOR DISCRIMINATION BY THE

GOVERNMENTAL UNIT INVOLVED

The Fourteenth Amendment to the United States

Constitution provides in pertinent part: “No State

shall... deny to any person within its jurisdiction the

equal protection of the laws.” City ordinances are con-

sidered state action for the purposes of this amend-

ment. Lovell v. City of Griffin, 303 U.S. 444, 450 (1938).

The Court has traditionally rejected distinctions

between citizens solely because of their ancestry as

being “ ‘odious to a free people whose institutions are

founded upon the doctrine of equality.’ ” Regents of the

University of California v. Bakke, 438 U.S. 265, 294

(1978) (quoting Loving v. Virginia, 388 U.S. 1, 11, 18

(1967), and Hirabayashi v. United States, 320 U.S. 81,

100 (1943)). This principle is inherent in the Equal

Protection Clause because the “rights created by the

first section of the Fourteenth Amendment are, by its

terms, guaranteed to the individual. The rights estab-

lished are personal rights.” Shelley v. Kraemer,

334 U.S. 1, 22 (1948).

Therefore, any official action that treats a person

differently on account of his race or ethnic origin is

inherently suspect and presumptively invalid, Fullilove

v. Klutznick, 448 U.S. 448, 496 n.1 (1980) (Powell, J.,

concurring), and can be upheld only upon an extraordi-

nary justification. Personnel Administrator of Massa-

chusetts v. Feeney, 442 U.S. 256, 272 (1979).

The sources of the justification must rest in the

discrimination sought to be corrected by the classifica-

tion. If no discrimination exists, amicus submits that a

preferential affirmative action plan enacted by a gov-

ernmental entity becomes racial discrimination out-

lawed by the Fourteenth Amendment.

This Court has held that government bodies may

constitutionally employ racial classifications essential

to remedy unlawful treatment of racial or ethnic groups

subject to discrimination. Wygant v. Jackson Board of

Education, 476 U.S. at 277, plurality opinion.

“[Rlemedying past or present racial discrimina-

tion . . . is a sufficiently weighty state interest to

warrant the remedial use of a carefully constructed

affirmative action program.” Wygant, 476 U.S. at 286

(O’Connor, J., concurring in part and concurring in

judgment). See also United States v. Paradise,

480 U.S. __, 94 L. Ed. 2d 203 (1987).

This Court has insisted, however, that there be

some showing of prior discrimination by the govern-

mental unit involved before allowing limited use of

racial classifications to remedy such discrimination.

Wygant, 476 U.S. at 274, plurality opinion. “Societal

discrimination, without more, is too amorphous a basis

for imposing a racially classified remedy.” Jd. at 276.

A government unit wishing to employ racial prefer-

ences may not act on the grounds of amorphous

assumptions of historical discrimination. To allow such

acts on so tenuous a finding would grant local govern-

ments unfettered discretion to adopt sweeping racial

preferences at their pleasure, irrespective of the need.

It is to guard against such abuse that this Court in

Wygant required the particularized findings of prior

discrimination. Jd.

Even if the City admitted to its own discrimination

against minority contractors this would not suffice to

meet the constitutional standard. Where the danger of

discrimination against nonminorities exists it is crucial

that there be evidence showing that the governmental

entity now seeking remedial action engaged in the prior

discriminatory acts. J. Edinger & Sons, Inc. v. City of

Louisville, Kentucky, 802 F.2d 213, 216 (6th Cir. 1986)

(citing Wygant, 476 U.S. at 276). See also Michigan

Road Builders Association, Inc. v. Milliken,

834 F.2d 583, 589 (6th Cir. 1987):

“Before a state may permissibly employ a racial or

ethnic classification . . . it must make a finding

based upon material factual evidence, that it has in

the past discriminated against classes it now

favors. If the state had not engaged in discrimina-

tion against racial and ethnic minorities in award-

ing contracts .. . in the past, then it cannot assert

in praesenti that it has a compelling interest in

preferring MBEs in the award of such contracts.”

In United States v. Paradise, 94 L. Ed. 2d at 203,

this Court reemphasized this need for a suitable basis.

Paradise upheld race-conscious relief imposed by the

District Court upon findings of discriminatory conduct.

The record in Paradise established that for four

decades the Alabama Department of Public Safety sys-

tematically excluded blacks from employment and pro-

motion. This Court held that the race conscious relief

imposed was amply justified.

In Croson, by contrast, the Richmond City Council’s

hearing failed to establish the basis for remedial

action. The proceedings revealed no record of prior dis-

crimination by the City in its award of public contracts.

Only conclusory and highly general statements made

by a member of the public (not in the construction

business), a city council member who supported the

plan, and the city manager were offered as a showing of

past discrimination. As the Court of Appeals observed:

“The plan was not supported by any impartial report,

any meaningful statistical evidence, or even by anecdo-

tal allegations of prior discrimination.” Croson,

822 F.2d at 1360. There was “no showing that qualified

minority contractors who submitted low bids were pas-

sed over or that qualified minority firms were excluded

from the bidding pool.” Jd. at 1359.

MERE STATISTICAL EVIDENCE OF

SOCIETAL DISCRIMINATION IS NOT

SUFFICIENT TO SUSTAIN A RACIALLY

CONSCIOUS AFFIRMATIVE ACTION

PLAN

The principal evidence cited by the City in support

of its racial preference program was statistical data

comparing the percentage of minority contracts granted

by the City with the total number of minority residents

in the community. The statistics, introduced to show a

discriminatory practice, indicated that while minorities

comprised 50% of Richmond’s population, minority-

owned firms had received only 0.67% of the dollar value

of Richmond’s prime contracts. Jd. at 1358.

Such use of general population statistics is insuffi-

cient to justify the type of preferential affirmative

action plan set forth by the City of Richmond. As this

Court held in Hazelwood School District v. United

States, 433 U.S. 299, 308 (1977):

“There can be no doubt. . . that the District Court’s

comparison of Hazelwood’s teacher work force to its

student population fundamentally misconceived

the role of statistics in employment discrimination

cases. The Court of Appeals was correct in the view

that a proper comparison was between the racial

composition of Hazelwood’s teaching staff and the

racial composition of the qualified public school

teacher population in the relevant labor market.”

In Croson the appropriate comparison should be

between the number of minority contracts awarded and

the number of qualified minority contractors available

in Richmond. Showing that a small number of city

contracts went to minority firms does not demonstrate

discrimination when, as both sides agreed, the number

of minority-owned contractors in Richmond was also

quite small. 822 F.2d at 1359.

While this Court has stated that statistics are com-

petent in proving employment discrimination their

usefulness depends on all of the surrounding facts and

circumstances. International Brotherhood of Teamsters

v. United States, 431 U.S. 324, 340 (1977). In Team-

sters, the comparison between the percentage of blacks

on the employer’s work force and the percentage of

blacks in the general areawide population was highly

probative because the job skill involved there—the abil-

ity to drive a truck—is one that many persons possess or

can fairly readily acquire.

When special qualifications are required to fill par-

ticular jobs, however, comparisons to the general popu-

lation may have little probative value. Hazelwood

School District v. United States, 433 U.S. at 308. See

also Johnson v. Transportation Agency, 480 U.S. __

94 L. Ed. 2d 615, 631 (1987). Here the city was put on

notice that under state law it was unlawful to engage

in, or offer to engage in, general contracting or sub-

contracting in the state on a job of $40,000 or more

without being duly licensed under Title 54, Chapter 7 of

the Code of Virginia, a class A license contractor

requirement. Joint Appendix at 32.

Other circuits have similarly rejected the use of

general population statistics to establish discrimina-

tion patterns. See Associated General Contractors of

California, Inc. v. City and County of San Francisco,

813 F.2d 922, 930 (9th Cir. 1987), and J. Edinger and

Son, Inc. v. City of Louisville, Kentucky, 802 F.2d 213.

In Edinger, the court held that a large discrepancy

between the percentage of minority residents in the

county and the percentage of business conducted with

minority-owned businesses by the city was insufficient

to support a minority vendors’ ordinance according

preference in bidding on supply and service contracts

with the city to minority-owned businesses. The funda-

mental flaw in the comparison is that the general pub-

lic does not bid on city contracts, only contractors do.

Id. at 215-16. As the court noted, “reliance upon gen-

eral population statistics is especially troubling given

that bid systems, by definition, are inherently non-

discriminatory.” Jd. at 216. Thus, the City should be

required to present evidence of invidious discrimina-

tion against minority-owned businesses in order to jus-

tify the preferential treatment afforded minority

vendors. Id.

Having failed to adduce evidence of its own dis-

crimination sufficient to justify its race based program,

City attempts to compensate by an attack on the pro-

gram’s victims. Thus City claims that its council “was

aware that there has been pervasive racial discrimina-

tion in the nation’s construction industry.” Brief of

appellant at 6. For this proposition City cites Fullilove,

448 U.S. at 477-78, as “finding that Congress had

‘abundant evidence’ of racial discrimination in the con-

struction industry to support its remedial action.” Brief

of appellant at 6-7.

This is a disingenuous reading of the Fullilove

holding. That statement came in the context of a dis-

cussion of state action that had a discriminatory impact

in perpetuating the effects of past discrimination.

Indeed, the fuller and more accurate quotation is:

“Congress had abundant evidence from which it could

conclude that minority businesses have been denied

effective participation in public contracting oppor-

tunities by procurement practices that perpetuated the

effects of prior discrimination.” Fullilove, 448 U.S.

at 477-78. The context makes clear that the Court was

referring to discrimination by state and local govern-

ment through their procurement practices. If City did

not discriminate in its procurement practices it has no

compelling governmental interest in enacting a race-

based “remedy.”

The referenced paragraph in Fullilove also holds

that Congress “may legislate without compiling the

kind of ‘record’ appropriate with respect to judicial or

administrative proceedings.” Jd. at 478. It is plain that

the Court was extending exceptional deference to the

unique powers of Congress. “It is fundamental that in

no organ of government, state or federal, does there

repose a more comprehensive remedial power than in

the Congress, expressiy charged by the Constitution

with competence and authority to enforce equal protec-

tion guarantees.” Jd. at 483.

Yet it is apparent that the Court was not altogether

comfortable with a race preference program, even one

adopted under the special powers reposed by the Con-

stitution in the Congress. Nonetheless, the Court

stated: “That the program may press the outer limits of

congressional authority affords no basis for striking it

down.” 7d. at 490.

If a program adopted by Congress under the Spend-

ing, Commerce, and Fourteenth Amendment enforce-

ment powers may press the outer limits of authority in

adopting a 10% set-aside, surely these limits have been

shattered by the City’s adoption of a 30% quota based

solely on its police powers. Truax v. Raich, 239 U.S. 33,

41 (1915), specifically rejected the adequacy of the

police power as authority to enact race-based quotas.

Unable to present evidence of past discrimination

in Richmond, City attempts to use Fullilove as a crutch

to bolster that burden. City reads Fullilove as finding

distrimination nationwide in construction contracting,

thereby authorizing every hamlet in the land to adopt

its own race preference program without further proof.

This key tenet of City’s dogma was rejected by this

Court in General Building Contractors Association, Inc.

v. Pennsylvania, 458 U.S. 375 (1982). There a state,

together with a class of minority group members, citing

a pattern and practice of racial discrimination, sought

and obtained an order from the District Court directing

nonmincrity contractors to meet detailed minority utili-

zation goals. This Court reversed, holding that minor-

ity hiring goals may not be imposed upon contractors

absent a supportable finding of liability. Jd. at 400.

Read together, Wygant and General Building Contrac-

tors require a city that imposes a race-based sub-

contracting requirement on its public contracts to make

two showings. First, the City must prove that it dis-

criminated against each of the now preferred groups.

Second, the City must prove that the impacted non-

minority contractors discriminated against each of the

preferred groups.

General Building Contractors further rejected the

racially disproportionate impact theory that forms the

sole basis here for City’s program. 458 U.S. at 390. That

case makes clear that if a state or local governmental

entity seeks to enact a race preference program, it must

go beyond numerical disparity and find intentional dis-

crimination on the part of those upon whom it intends

to thrust the burden of the program. In its narrow

reliance on a disparity between the percentage of

minority population and the percentage of prime con-

tracts awarded to minorities, the City of Richmond has

failed to meet the General Building Contractors

standards.

Ii!

A RACIAL CLASSIFICATION PLAN

DESIGNED TO REMEDY PAST ACTS OF

DISCRIMINATION MUST BE NARROWLY

TAILORED TO ACHIEVE THAT GOAL

Even if this Court were to find there existed suffi-

cient evidence to establish a finding of prior discrimina-

tion, the City’s racial preference program fails on the

grounds it is not narrowly tailored to address findings

of past discrimination. “Race-conscious distinctions

must be narrowly tailored to eliminate the conse-

quences of past discrimination.” Associated General

Contractors of California, Inc. v. City and County of

San Francisco, 813 F.2d at 934 (citing Bakke, 438 U.S.

at 299 (opinion of Powell, J.)); Paradise, 94 L. Ed. 2d

at 203 (plurality opinion) and at 220 (O’Connor, J.,

dissenting); Wygant, 476 U.S. at 274 (plurality opinion);

Fullilove, 448 U.S. at 484 (opinion of Burger, C. J.).

This means that the classification adopted must “ ‘fit’

with greater precision than any alternative means.”

Associated General Contractors of California, Inc. v.

City and County of San Francisco, 813 F.2d at 935

(quoting Wygant, 476 U.S. at 280 n.6 (plurality opin-

ion)) (citing Ely, The Constitutionality of Reverse Racial

Discrimination, 41 U. Chi. L. Rev. 723, 727 n.26

(1974)).

To begin with, the definition of minority owned

businesses is not narrowly tailored to the remedying of

the alleged past discrimination. The Richmond plan

defines minority group members as citizens of the

United States who are Blacks, Spanish-speaking, Ori-

entals, Indians, Eskimos, or Aleuts. Croson, 822 F.2d

at 1361. Yet the City has made no showing of past

discrimination against each of those particular minor-

ity groups. In the words of Wygant: “ ‘There is no

explanation of why the Board chose to favor these par-

ticular minorities or how in fact members of some of the

categories can be identified.” ” Quoted in Croson,

822 F.2d at 1361.

The lack of narrow tailoring is further emphasized

by the fact that the plan makes no attempt to limit its

benefits to those specific individual members of minor-

ity groups that have in fact been injured by past dis-

crimination. See Firefighters Local Union No. 1784 uv.

Stotts, 467 U.S. 561, 578-79 (1984). The favored classes

of minorities are defined here not in terms of past

injury but rather as those businesses owned and con-

trolled by one or more minority persons.

Stotts notes that International Brotherhood of

Teamsters v. United States, 431 U.S. at 367-71, makes

clear “that mere membership in the disadvantaged

class is insufficient to warrant a seniority [here con-

tract preference] award; each individual must prove

that the discriminatory practice had an impact on him.”

Stotts, 467 U.S. at 579. This was also the holding of the

lead opinion in Fullilove which declared that any plan

of this type must prevent unjust participation in the

program by those minority firms whose access to public

contracting is not impaired by the effects of prior dis-

crimination. 448 U.S. at 482 (opinion of Burger, C. J.).

The lack of such safeguards here indicates that the

program at issue is not designed to remedy past dis-

crimination, but rather to promote the economic inter-

ests of certain classes.

This suspicion is reinforced by the fact that the

30% “goal” has no relation to the number of qualified

minority contractors in the Richmond area. One of the

more troubling aspects of this case is that apparently

the City made no effort to determine the number of

licensed minority contractors before adopting its pro-

gram. It merely selected an arbitrary figure it now

claims was approximately midway between the 1% of

city contracts awarded to minorities and the 50% of

minorities in Richmond. Brief of appellant at 45.

As the Court of Appeals observed: “General popula-

tion statistics suggest, if anything, more of a political

than a remedial basis for the racial preference.”

-_-—- -—--=— ee — —————————

Croson, 822 F.2d at 1358-59. The court sounded the

compelling warning that “[i]f this plan is held to be

valid, then local governments will be free to adopt

sweeping racial preferences at their pleasure, whether

those preferences are legitimate remedial measures or

bald dispensations of public funds and employment

based on the politics of race.” Id. at 1357-58.

It is precisely to avoid the award of public contracts

on a political basis that most states have adopted stat-

utes mandating competitive bidding. Such statutes are

designed to protect the public by preventing public

officials from awarding contracts uneconomically on the

basis of “special friendship,” thereby protecting tax-

payers from corruption and waste of public funds. Asso-

ciated General Contractors of California v. San

Francisco Unified School District, 616 F.2d 1381, 1391

(9th Cir. 1980).

Setting the goal of awarding 30% of City contract

dollars to a preferred class of contractors, far out of

proportion to their presence in the contracting commu-

nity, carries “special friendship” in the name of politics

to an impermissible extreme. Because the Richmond

plan is not tailored to remedy past discrimination, it is

itself discrimination on the basis of race and violates

the Equal Protection Clause of the Fourteenth

Amendment.

CONCLUSION

In finding that the Richmond plan violated the

Equal Protection Clause of the Fourteenth Amendment,

the Court of Appeals upheld the principles of Wygant

which firmly established that a government-enacted

racial preference program is not to be tolerated in the

absence of evidence of actual discrimination.

Eradicating vestiges of racial discrimination is a

legitimate and substantial interest of the state. But,

this Court has never approved of a classification that

aids persons perceived as members of relatively vic-

timized groups at the expense of other innocent individ-

uals in the absence of judicial, legislative, or

administrative findings of constitutional or statutory

violations. Regents of the University of California v.

Bakke, 438 U.S. at 307 (opinion of Powell, J.).

A particularized finding of discrimination must be

made so that the interests of innocent nonminorities

will not be invaded without valid justification. “The

guarantee of equal protection cannot mean one thing

when applied to one individual and something else

when applied to a person of another color. If both are

not accorded the same protection, then it is not equal.”

Id. at 289.

Because the ordinance operates to discriminate

against nonminority contractors under the unfounded

guise of remedying discrimination against minorities

and is not narrowly drawn to remedy the perceived

problem, amicus urges that this Court affirm the deci-

sion of the Court of Appeals finding that the Richmond

ordinance violates the Equal Protection Clause of the

Fourteenth Amendment.

DATED: June, 1988.

Respectfully submitted,

RONALD A. ZUMBRUN

*JOHN H. FINDLEY

*COUNSEL OF RECORD

Pacific Legal Foundation

555 Capitol Mall, Suite 350

Sacramento, California 95814

Telephone: (916) 444-0154

Attorneys for Amicus Curiae,

Pacific Legal Foundation

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