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Legal Standards for Government Affirmative Action Contracting Programs
MBE had suffered discrimination. 24 Further, Justice O’Connor rejected the argument that
individualized consideration of Plan eligibility is too administratively burdensome.
Apparently recognizing that the opinion might be misconstrued to categorically eliminate all
race-conscious contracting efforts, Justice O’Connor closed with these admonitions:
Nothing we say today precludes a state or local entity from taking action to rectify the
effects of identified discrimination within its jurisdiction. If the City of Richmond had
evidence before it that non-minority contractors were systematically excluding minority
businesses from subcontracting opportunities, it could take action to end the
discriminatory exclusion. Where there is a significant statistical disparity between the
number of qualified minority contractors willing and able to perform a particular service
and the number of such contractors actually engaged by the locality or the locality’s
prime contractors, an inference of discriminatory exclusion could arise. Under such
circumstances, the City could act to dismantle the closed business system by taking
appropriate measures against those who discriminate based on race or other illegitimate
criteria. In the extreme case, some form of narrowly tailored racial preference might be
necessary to break down patterns of deliberate exclusion.…Moreover, evidence of a
pattern of individual discriminatory acts can, if supported by appropriate statistical proof,
lend support to a local government’s determination that broader remedial relief is
justified. 25
While much has been written about Croson, it is worth stressing what evidence was and was not
before the Court. First, Richmond presented no evidence regarding the availability of MBEs to
perform as prime contractors or subcontractors and no evidence of the utilization of minorityowned
subcontractors on City contracts. 26 Nor did Richmond attempt to link the remedy it
imposed to any evidence specific to the Program; it used the general population of the City rather
than any measure of business availability. The “city has not ascertained how many minority
enterprises are present in the local construction industry nor the level of their participation in city
construction projects. The city points to no evidence that qualified minority contractors have
been passed over for city contracts or subcontracts, either as a group or in any individual case.” 27
Some commentators have taken this dearth of any particularized proof and argued that only the
most particularized proof can suffice in all cases. They leap from the Court’s rejection of
Richmond’s reliance on only the percentage of African Americans in the City’s population to a
requirement that only firms that bid or have the “capacity” or “willingness” to bid on a particular
24 See Grutter, 529 U.S. at 336-337 (quotas are not permitted; race must be used in a flexible, non-mechanical
way).
25 Croson, 488 U.S. at 509 (citations omitted).
26 Id. at 502.
27 Id. at 510.
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