Posted: September 13th, 2017

Minority Set- Asides

Minority Set- Asides

Case 11.1 Minority Set- Asides
Richmond, Virginia, the former capital of the Confederacy, is not the sort of place one would normally

associate with controversial efforts at affirmative action. But aware of its legacy of racial discrimination

and wanting to do something about it, the Richmond City Council adopted what it called the Minority

Business Utilization Plan— a plan that eventually brought it before the U. S. Supreme Court. The plan,

which the council adopted by a 5- to- 2 vote after a public hearing, required contractors to whom the

city awarded construction contracts to subcontract at least 30 percent of the dollar amount of their

contracts to Minority Business Enterprises ( MBEs). A business was defined as an MBE if minority group

members controlled at least 51 percent of it, and a minority- owned business from anywhere in the

United States could qualify as an MBE sub-contractor. ( The 30 percent set- aside did not apply to con-

struction contracts awarded to minority contractors in the first place.) Proponents of the set- aside

provision relied on a study that indicated that whereas the general population of Richmond was 50

percent African American, only 0.67 percent of the city’s construction contracts had been awarded to

minority businesses. Council member Marsh, a proponent of the ordi-nance, made the following

statement: I have been practicing law in this community since 1961, and I am familiar with the practices

in the construction industry in this area, in the state, and around the nation. And I can say with-out

equivocation, that the general conduct of the construction industry . . . is one in which race

discrimination and exclusion on the basis of race is widespread. Opponents questioned both the wisdom

and the legality of the ordinance. They argued that the disparity between minorities in the population

of Richmond and the low number of contracts awarded to MBEs did not prove racial discrimina-tion in

the construction industry. They also questioned whether there were enough MBEs in the Richmond area

to satisfy the 30 percent requirement. The city’s plan was in effect for five years. During that time, it

was challenged in the courts. A federal district court upheld the set- aside ordinance, stating that the

city council’s “ findings [ were] sufficient to ensure that, in adopting the Plan, it was remedying the

present effects of past discrimination in the construction industry.” However, the case was appealed to

the Supreme Court, which ruled in City of Richmond v. Croson that the Richmond plan was in violation of

the equal protection clause of the Fourteenth Amendment. 68 In delivering the opin-ion of the majority

of the Court, Justice Sandra Day O’Connor argued that Richmond had not supported its plan with

sufficient evidence of past discrimination in the city’s construction industry: A generalized assertion

that there has been past dis-crimination in an entire industry provides no guid-ance for a legislative

body to determine the precise scope of the injury it seeks to remedy. It “ has no logi-cal stopping

point.” . . . “ Relief” for such an ill- defined wrong could extend until the percentage of public contracts

awarded to MBEs in Richmond mirrored the percentage of minorities in the population as a whole. [ The

City of Richmond] argues that it is attempting to remedy various forms of past discrimination that are

alleged to be responsible for the small number of minority businesses in the local ­contracting industry. .

. . While there is no doubt that the sorry history of both private and public discrimination in this country

has contributed to a lack of opportunities for black entrepreneurs, this observation, standing alone,

cannot justify a rigid quota in the awarding of public contracts in Richmond, Virginia. Like the claim that

discrimina-tion in primary and secondary schooling justifies a rigid racial preference in medical school

admis-sions, an amorphous claim that there has been past discrimination cannot justify the use of an

unyielding racial quota. It is sheer speculation how many minority firms there would be in Richmond

absent past societal discrimination, just as it was sheer speculation how many minority medical

students would have been admitted to the medical school at Davis absent past discrimination in

educational opportu-nities. Defining these sorts of injuries as “ identified discrimination” would give

local governments license to create a patchwork of racial preferences based on statistical

generalizations about any par-ticular field of endeavor. These defects are readily apparent in this case.

The 30% quota cannot in any realistic sense be tied to any injury suffered by anyone. . . . In sum, none of

the evidence presented by the city points to any identified discrimination in the Richmond construction

industry. We, therefore, hold that the city has failed to demonstrate a compelling interest in

apportioning public contracting opportunities on the basis of race. To accept Richmond’s claim that

past societal discrimination alone can serve as the basis for rigid racial preference would be to open the

door to competing claims for “ remedial relief” for every disad-vantaged group. The dream of a Nation of

equal citi-zens in a society where race is irrelevant to personal opportunity and achievement would be

lost in a mosaic of shifting preferences based on inherently unmeasur-able claims of past wrongs. . . . We

think such a result would be contrary to both the letter and spirit of a constit­utional provision whose

central command is equality. But the Court’s decision was not unanimous, and Justice Thurgood Marshall

was joined by Justices William Brennan and Harry Blackmun in dissenting vigorously to the opinion of the

majority. Justice Marshall wrote: The essence of the majority’s position is that Richmond has failed to . .

. prove that past discrimi-nation has impeded minorities from joining or par-ticipating fully in

Richmond’s construction contracting industry. I find deep irony in second-guessing Richmond’s

judgment on this point. As much as any municipality in the United States, Richmond knows what racial

discrimination is; a century of decisions by this and other federal courts has richly documented the

city’s disgraceful history of public and private racial discrimination. In any event, the Richmond City

Council has supported its determination that minorities have been wrongly excluded from local

construction contracting. Its proof includes statistics showing that minority-owned businesses have

received virtually no city contracting dollars; . . . testimony by municipal offi-cials that discrimination

has been widespread in the local construction industry; and . . . federal studies . . . which showed that

pervasive discrimi-nation in the Nation’s tight- knit construction indus-try had operated to exclude

minorities from public contracting. These are precisely the types of statis-tical and testimonial evidence

which, until today, this Court has credited in cases approving of race-conscious measures designed to

remedy past discrimination.

Discussion Questions
1. What was the Richmond City Council trying to accom-plish with its Minority Business Utilization Plan?

If you had been a member of the council, would you have voted for the plan?
2. What are the pros and cons of a minority set- aside plan like Richmond’s? Will it have good

consequences? Does it infringe on anyone’s rights? What conflicting moral principles, ideals, and values

are at stake?
3. Do you believe that there was sufficient evidence of racial discrimination to justify the city’s plan?

Who is right about this— Justice O’Connor or Justice Marshall?
4. Justice O’Connor and the majority of the Court seem to believe that there must be some specific,

identifiable individuals who have been discriminated against before race- conscious measures can be

adopted to remedy past discrimination. Do you agree that affirmative action measures must meet this

standard?
5. In light of the fact that no federal statute specifically bars racial discrimination in private domestic

commercial transactions between two business firms, and given the evidence that racism is an obstacle

to African- American business success, 69 what obligation, if any, does state, local, or federal

government have to assist minority-owned companies?
6. What measures could Richmond have taken that would have increased opportunities for minority

business but would not have involved racial quotas? Would such measures be as effective as the original

plan?

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