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.
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
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
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