J.A. CROSON COMPANY, Appellant,
CITY OF RICHMOND,
Associated General Contractors of America, Amicus Curiae.
CITY OF RICHMOND,
Associated General Contractors of America, Amicus Curiae.
Reginald M. Barley, Sr. Asst. City Atty. (Michael L. Sarahan,Â Asst. City Atty., Richmond, VA, on brief), forÂ appellee/cross-appellant.
Michael E. Kennedy, McLean, Va., for amicus curiae.
Before HALL, SPROUSE, and WILKINSON, Circuit Judges.
Rehearing and Rehearing En Banc Denied September 18, 1987.
WILKINSON, Circuit Judge:
This case is now before us on remand from the Supreme Court. It involves aÂ challenge to the Minority Business Utilization Plan enacted by the City Council of Richmond, Virginia. The planÂ requires contractors on cityÂ construction projects to subcontract at least thirty percent of the dollar valueÂ of the contract to minority-owned business enterprises (MBE’s) unless the city waives the requirement. Â This court earlier upheld the plan under Virginia law and the federalÂ Constitution.
The Supreme Court granted certiorari, vacated the judgment, and remanded theÂ case for consideration in light of WygantÂ v. Jackson Board of Education, 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260
(1986). We now hold that the Richmond plan is invalid underÂ the Equal Protection Clause of the Fourteenth Amendment.
I.Â The Minority Business Utilization Plan, enacted in April of 1983, sets asideÂ part of the city’sÂ construction expenditures for minority-owned businesses. The plan terminates inÂ 1988, at which time the CityÂ Council can renew it or allow it to lapse. Under the plan, the prime contractorÂ must subcontract at least thirty percent of the dollar value of the contract toÂ firms that are at least one-half minority owned. Every construction contractÂ includes provisions setting out the MBE requirement and the procedures forÂ complying with it. The contract provisions state that if a contractor fails toÂ meet the MBE requirement, the contract “shall be suspended or terminated unless aÂ waiver is granted.” They further state that the city will not waive theÂ requirement “other than in exceptional circumstances.” Only non-minority primeÂ contractors must comply with the plan provisions.
In September of 1983, the city invited bids for theÂ installation of stainless steel urinals and water closets at the City Jail. The J.A. Croson Co., which is not itselfÂ an MBE, was the only bidder on the contract. After Croson submitted its bid forÂ the project, it requested a waiver of the MBE requirement. Croson contended that it wasÂ unable to locate any minority subcontractors, except one that it consideredÂ unqualified. The city
refused to grant a waiver. Croson then informed the city that if it were requiredÂ to use the unqualified contractor, the cost of the project would rise byÂ $7,663.16, and the contract price would have to rise accordingly. The city again turned Croson down, stating that theÂ minority contractor was qualified and that the fixed price bid could not beÂ increased.
Shortly thereafter, the city informed Croson that it had decided toÂ re-bid the project. CrosonÂ was invited to submit a new bid. Croson then sued in federalÂ district court, arguing that the plan’s racial set-aside was contrary toÂ Virginia law governing competitive bid procedures and that it violated theÂ federal Constitution. CrosonÂ brought its federal claims under 42 U.S.C. Â§Â§ 1981 and 1983.
The district court ruled that the plan was consistent with both Virginia lawÂ and federal law. A divided panel of this court affirmed. J.A.Â Croson Co. v. City of Richmond, 779 F.2d 181 (4thÂ Cir.1985). After this court announced its decision, the Supreme CourtÂ decided WygantÂ v. Jackson Board of Education, 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260Â (1986). The Supreme Court granted certiorari in the Croson case and remanded itto us for further co nsideration in light of Wygant. See ___ U.S. ___, 106
S.Ct. 3327, 92 L.Ed.2d 733 (1986).
Wygant involved a challenge to a preferential layoff provision in aÂ collective bargaining agreement for school teachers. The agreement stated thatÂ if the Board of Education needed to lay off any teachers, those with the mostÂ seniority would be protected, “except that at no time will there be a greaterÂ percentage of minority personnel laid off than the current percentage ofÂ minority personnel employed at the time of the layoff.” The Court held this provision unconstitutional, principallyÂ because the racial preference was not justified by adequate findings of priorÂ discrimination and because it was not narrowly tailored to its asserted remedial
After reconsidering our decision in light of Wyqant, we conclude thatÂ we must invalidate the racial preference in the Richmond plan. The veryÂ infirmities which marked the preferential provision in Wygant are presentÂ in this case.
II.Â Because the views of the majority in Wygant were expressed in aÂ plurality opinion and two concurrences, the boundaries of Wygant will noÂ doubt be a matter of dispute. There should be no dispute, however, about the core ofÂ its holding: To show that a plan is justified by a compelling governmentalÂ interest, a municipality that wishes to employ a racial preference cannot restÂ on broad-brush assumptions of historical discrimination. Yet that is exactlyÂ what the Richmond City Council did in this case.
If this plan is held to be valid, then local governments will be free to adoptÂ sweeping racial preferences at their pleasure, whether those preferences areÂ legitimate remedial measures or bald dispensations of public funds andÂ employment based on the politics of race. It is precisely to guard against thisÂ latter abuse that the Wygant requirement of particularized findings isÂ essential.
A.Â According to the Wygant plurality, before an asserted governmentalÂ interest in a racial preference can be accepted as “compelling,” there must beÂ findings of prior discrimination. Findings of societal discriminationÂ will not suffice; the findings must concern “prior discrimination by theÂ government unit involved” (emphasis added).Â Moreover, if this finding is to be drawn from mereÂ statistical evidence, that evidence cannot just show a disparity between theÂ percentage of minorities in some activity (e.g., employment in public schools orÂ awarding of public contracts) and the percentage of minorities in the community.
It must instead focus on the population that is relevant for comparativeÂ purposes, such as the percentage of minorities in the local labor force or theÂ construction business. Id. at 1847-48; see also Johnson
v. Transportation Agency, Santa Clara County, 480 U.S. 616, 107 S.Ct. 1442,Â 1452, 94 L.Ed.2d 615 (1987); HazelwoodÂ School District v. United States, 433 U.S. 299, 308 & n. 13, 97 S.Ct.
2736, 2742 & n. 13, 53 L.Ed.2d 768 (1977).
The Supreme Court in UnitedÂ States v. Paradise, 480 U.S. 149, 107 S.Ct. 1053, 94 L.Ed.2d 203 (1987)
and LocalÂ 28 of Sheet Metal Workers v. EEOC, 478 U.S. 421, 106 S.Ct. 3019, 92 L.Ed.2d
344 (1986), reemphasized this need for a suitable basis for remedial action. Â In both of these cases, the Court upheld race-conscious relief imposed byÂ district courts where the offending institutions had a history of discriminatoryÂ conduct. In Paradise, for example, the Court reviewed that institutionalÂ history in painstaking detail, noted the “four decades” during which blacks hadÂ suffered total exclusion from all positions in the Alabama Department of PublicÂ Safety, and concluded that the “pervasive, systematic, and obstinateÂ discriminatory conduct of the Department” justified the race-conscious reliefÂ ordered by the district court. 107Â S.Ct. at 1065 (opinion of Brennan, J.). While Wygant involvedÂ voluntary action and Paradise and Sheet Metal Workers involvedÂ court-ordered remedies, there was in all those cases a substantial basis forÂ believing that remedial action was required.
Here, by contrast, proceedings before the City Council failed toÂ establish the basis for remedial action. The debate, at the very end of aÂ five-hour council meeting, revealed no record of prior discrimination by the city in awarding publicÂ contracts, aside from some conclusory and highly general statements made by a
member of the public, a CityÂ Council member who supported the plan, and the City Manager. The member of theÂ public who testified about discrimination was not even involved in theÂ construction industry. The City Manager’s comments mainlyÂ had to do with the city ofÂ Pittsburgh. Such meager evidence is not a sufficient finding of priorÂ discrimination. The proceedings betray the very casualness about the use ofÂ racial distinctions in public enactments that Wygant warned against.
The only other evidence purporting to show discrimination in the assignmentÂ of contracts compared the percentage of minority contracts with the total numberÂ of minority residents in the community. Statistical records were said toÂ indicate that minorities comprised 50% of Richmond’s population but that
minority-owned firms had received only 0.67% of the dollar value of Richmond’s prime contracts.
General populationÂ statistics suggest, if anything, more of a political than a remedial basis for
the racial preference. According to the plurality in Wygant, this isÂ exactly the kind of evidence that will not pass muster.
The appropriate comparison is between the number of minority contracts andÂ the number of minority contractors, taking into account other relevantÂ variables such as experience and specialties. Showing that a small fraction ofÂ city contracts went toÂ minority firms, therefore, does not itself demonstrate discrimination; bothÂ sides agree that the number of minority-owned contractors in Richmond was also quite small.
Wygant rejected a similar comparison in an employment context:
There are numerous explanations for a disparity between the
percentage of minority students and the percentage of minority faculty, many of
them completely unrelated to discrimination of any kind. In fact, there is no
apparent connection between the two groups. Nevertheless, the District Court
combined irrelevant comparisons between these two groups with an indisputable
statement that there has been societal discrimination, and upheld state action
predicated upon racial classifications.
106 S.Ct. at 1838.
Our holding today is likewise consistent with that of the Sixth Circuit in J.Â Edinger & Son, Inc. v. City of Louisville, 802Â F.2d 213 (6th Cir.1986). In Edinger, the city of Louisville enacted aÂ program to grant preferential treatment to racial minorities, women, and theÂ handicapped in awarding its supply and service contracts. There, as in theÂ present case, the need for the program was justified principally by general
population statistics. Because general population statistics failed to addressÂ the “statistical disparity between the percentage of qualified minority businessÂ contractors doing business in Jefferson County and the percentage of bid fundsÂ awarded to those businesses,” the Sixth Circuit found that the program did not
comport with Wygant. 802Â F.2d at 216. Accord AssociatedÂ General Contractors of California v. San Francisco, 813 F.2d 922 (9thÂ Cir.1987).
We do not suggest that the City Council should be held toÂ as high a standard in its factfinding as, say, a federal district court. JusticeÂ O’Connor, in her concurrence in Wygant, identified the problems with
requiring an extended mea culpa from localities seeking to eliminate aÂ historical pattern of discriminatory practice. Legislative findings are,Â moreover, different from judicial ones; the City Council need not have
produced formal, contemporaneous findings, so long as it had “a firm basis forÂ believing that remedial action is required.” Wygant,Â 106 S.Ct. at 1853 (O’Connor, J., concurring in part and concurring in the
In this case, however, the city has failed to show such aÂ firm basis, either contemporaneously or at the district court level. The ableÂ trial judge could not point to any evidence beyond that relied upon by the City Council â namely, theÂ spurious statistical comparison and the nearly weightless testimony. We cannot
uphold the plan based on this evidence, nor would it be proper for us to developÂ a post hoc rationale for the city’s racial preference.
In sum, the omissions in this case overshadow the evidence. There has been noÂ showing that qualified minority contractors who submitted low bids were passedÂ over. There has been no showing that minority firms were excluded from theÂ bidding pool. Edinger,Â 802 F.2d at 216. There has been no showing â only the loosest sort ofÂ inferences â of past discrimination, without which Wygant does not permitÂ a racial preference to stand.
The record in this case suggests that the City Council thought it wasÂ permissible simply to adopt the contract set-aside program upheld by the SupremeÂ Court in FulliloveÂ v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980). MuchÂ of the discussion in the hearings was apparently based on that premise, and someÂ aspects of the Richmond planÂ follow the Fullilove set-aside to the letter. If the City Council did rely on thatÂ premise, it was in error. National findings do not alone establish the need forÂ action in a particular locality. If they did, the Wygant Court’sÂ rejection of 1360*1360Â societal discrimination as a basis for remedial action would be undercut. For aÂ locality to show that it enacted a racial preference as a remedial measure, itÂ must have had a firm basis for believing that such action was required based onÂ prior discrimination by the locality itself. The Court upheld the set-aside inÂ Fullilove based on Congress’s well-founded belief that such a program wasÂ needed at the federal level; the Court emphasized the special competence ofÂ Congress to act on such a finding. 448Â U.S. at 483, 100 S.Ct. at 2777; 448
U.S. at 499-502, 100 S.Ct. at 2785-87 (Powell, J., concurring). LocalitiesÂ cannot disregard the line between remedial measures and political transfers byÂ adopting the Fullilove program as though it were boilerplate.
B.Â The record of prior discrimination supporting the Richmond plan is deficient. ItsÂ deficiency is made more clear by comparison with plans considered in otherÂ circuits. For example, in ValentineÂ v. Smith, 654 F.2d 503 (8th Cir.1981), the record of priorÂ discrimination supporting the racial preference included reviews by the OfficeÂ of Civil Rights of the Department of Health, Education, and Welfare (HEW) andÂ also a successful Title VI suit in federal district court. A similar recordÂ supported the preference in KromnickÂ v. School Dist. of Philadelphia, 739 F.2d 894 (3d Cir.1984).
In AssociatedÂ General Contractors v. Metropolitan Dade County, 723 F.2d 846 (11thÂ Cir.1984), the locality had “reliable, substantial information compiled byÂ independent investigations” that showed “identified discriminationÂ against Dade County black contractors….” Id. at 853 (emphasis inÂ original). The court in OhioÂ Contractors Assoc. v. Keip, 713 F.2d 167 (6th Cir.1983), found that theÂ state’s racial preference was a remedial measure partly because theÂ legislators
were informed of the findings of racial discrimination in state contracting made in connection with an earlier joint resolution of the legislature and the contents of the report of a special `task force’ established by the state attorney general which found a severe numerical imbalance in the amount of business the state did with minority groups.
Id. at 171. The court went on to describe various studies comparingÂ the volume of minority contracts with the number of minority businesses,Â rather than the minority population as a whole.
Finally, in Fullilove, the Supreme Court noted that Congress’sÂ decision to enact a minority set-aside for federal contracts was supported byÂ reports of congressional committees, the U.S. Civil Rights Commission, and theÂ General Accounting Office. See 448Â U.S. at 465-67, 100 S.Ct. at 2768-69; id. at 503-06, 100 S.Ct. atÂ 2787-89 (Opinion of Powell, J.).
Of course, we do not intimate any view on the adequacy of the plans describedÂ in Valentine, Kromnick, Associated General Contractors, and OhioÂ Contractors. These cases were all decided prior to the WygantÂ decision. We note only that the support offered for the Richmond plan is extremely weak
in comparison. The plan was not supported by any impartial report, anyÂ meaningful statistical evidence, or even by anecdotal allegations of priorÂ discrimination. Based on such a record, we cannot uphold the plan as a remedialÂ measure under Wygant. If this plan is supported by a compellingÂ governmental interest, then so is every other plan that has been enacted in theÂ past or that will be enacted in the future.
III.Â Even if we accepted that the Richmond racial set-aside wasÂ justified by a need to remedy prior discrimination, the plan still fails becauseÂ it is not narrowly tailored to that remedial goal. It is of central importanceÂ to equal protection under law that public distinctions between citizens on theÂ basis of their race be narrowly and specifically framed. Wygant,Â 106 S.Ct. at 1849-50. The thirty percent quota was chosen arbitrarily; itÂ was not tied, for example, to a showing that thirty percent of Richmond subcontractors areÂ minority-owned. The figure simply emerged from the mists. The combination 1361*1361 of a large set-asideÂ and a small number of actual minority beneficiaries presents a special potentialÂ for abuse. As such, it imposes an overbroad competitive burden on non-minorityÂ businesses.
The competitive disadvantage is far greater than the thirty percent minimumÂ set-aside suggests. In many construction contracts, the dollar allocation amongÂ subcontractors will not break into a thirty percent block. If, for example, aÂ project required three subcontractors whose respective efforts represented 55,
25, and 20 percent of the total project cost, compliance with the Richmond ordinance could come
only by awarding 55 or 45 percent of the total dollar amount to raciallyÂ preferred businesses. In this case, the supply of plumbing fixtures representedÂ 75 percent of the cost of the total project, an amount Croson was obliged to award toÂ a minority enterprise in order to meet the minimum 30 percent set-aside. Such
means “unnecessarily trammel the rights of innocent individuals directly andÂ adversely affected by a plan’s racial preference.” Wygant,Â 106 S.Ct. at 1854 (Opinion of O’Connor, J.). The disadvantage is further
compounded by the fact that minority prime contractors are exempt from theÂ higher construction costs often imposed by the MBE subcontract set-aside whileÂ non-minority primes are subject to them. Richmond City Code, Ch. 24.1, Art.Â VIII-A(A).
In addition, the definition of minority-owned business is itself not narrowlyÂ tailored to the remedying of past discrimination. The Richmond plan defines “minorityÂ group members” as “[c]itizens of the United States who are Blacks,Â Spanish-speaking, Orientals, Indians, Eskimos, or Aleuts.” This definitionÂ nearly duplicates the definition that drew fire in Wygant:
The Board’s definition of minority to include blacks, Orientals,
American Indians, and persons of Spanish descent … further illustrates the
undifferentiated nature of the plan. There is no explanation of why the Board
chose to favor these particular minorities or how in fact members of some of the
categories can be identified. Moreover, respondents have never suggested â much
less formally found â that they have engaged in prior, purposeful discrimination
against members of each of these minority groups.
The same aggregation problem is present in the Richmond plan. A record ofÂ prior discrimination against blacks by a governmental unit would not justify aÂ remedial plan that also favors other minority races. The need for this kind ofÂ narrow tailoring, like the need for findings of past discrimination, arisesÂ because the governmental unit enacting a racial preference must limit itself toÂ remedying past discriminatory practices.
Finally, as was noted by the prior opinion in this case, the presence of anÂ expiration date and a waiver provision may help to narrow the scope of a plan’sÂ operation. Croson, 779 F.2d atÂ 191. Those features cannot, however, salvage an ordinance which otherwiseÂ transgresses Wygant‘s standards. Whether the Richmond plan will be retiredÂ or renewed in 1988 is, at this point, nothing more than speculation. Nor does
the waiver here cure the constitutional defects defined by the WygantÂ decision. The waiver is to be granted “only in exceptional circumstances” and asÂ a matter of administrative discretion. The burden of obtaining the waiver restsÂ at all times upon the prime contractor who must demonstrate the unavailabilityÂ or the unwillingness of racially preferred enterprises to participate in theÂ contract project. See Croson, Appendix B, 779Â F.2d at 179-80. We doubt that any waiver, let alone the restrictive provisionsÂ of the waiver in this case, could cure the objectionable aspects of the Richmond ordinance.
Although this case presents a Fourteenth Amendment claim rather than a TitleÂ VII claim, the Supreme Court’s recent pronouncement on Title VII in Johnson,Â supra, is still instructive. The Court may have adopted aÂ different standard for evaluating challenges to plans under Title VII than underÂ the Fourteenth Amendment, but it has insisted in both contexts that remedialÂ efforts must ensure fair treatment 1362*1362 of whites and blacks, males and females. The CourtÂ stressed in Johnson that the Agency plan permitted competition amongÂ qualified aspirants, 107Â S.Ct. at 1455; the Richmond plan, by contrast,Â aims to stifle competition in the interest of a rigid set-aside. The plan upheldÂ in Johnson made race or gender “but one of numerous factors” consideredÂ by the government agency in its employment decisions. Id. The race or
gender of an applicant was merely a “plus”; no rigid quotas or set-asides wereÂ used. The Court characterized the program as a “moderate, flexible, case-by-caseÂ approach to effecting a gradual improvement in the representation of minoritiesÂ and women in the Agency’s work force.” Id. at 1457. None of the factorsÂ emphasized by the Court in Johnson apply to Richmond’s plan, which featuresÂ the combination of an inadequate foundation for remedial action plus aÂ “reflexive adherence to a numerical standard” which the Supreme Court inÂ Johnson disavowed. Id. at 1455.
IV.Â The Wygant requirements amount to more than a trivial hurdle forÂ localities that wish to draw racial distinctions. They are the heart of theÂ Supreme Court’s approach to the constitutionality of remedial preferences. Â Nothing in Wygant outlaws all such preferences, and subsequent cases haveÂ clarified their reach. Wygant does, however, limit racial preferences toÂ what is necessary to redress a practice of past wrongdoing. The Richmond ordinance reflects theÂ most casual deployment of race in the dispensation of public benefits. ItÂ prefers some, and in so doing diminishes the rights of all. WygantÂ rejected that approach, and with it the notion that racial distinctions amongÂ citizens will ever become the perfunctory reality of public life.
The judgment of the district court is reversed and the case is remanded for aÂ determination of appropriate legal and equitable relief.
REVERSED AND REMANDED.
SPROUSE, Circuit Judge, dissenting:
As the majority notes, the Supreme Court remanded our previous decision forÂ us to consider the constitutionality of the City of Richmond’s affirmative actionÂ ordinance in light of Wygant
v. Jackson Board of Education, 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260Â (1986). In my view the majority both misconstrues and misappliesÂ Wygant. In his plurality opinion, Justice Powell stated that any
classification based on race “must be justified by a compelling governmentalÂ interest,” id. at 1846 (plurality opinion) (quoting PalmoreÂ v. Sidoti, 466 U.S. 429, 432, 104 S.Ct. 1879, 1881, 80 L.Ed.2d 421
(1984)), and “the means chosen … to effectuate its purpose must beÂ narrowly tailored to the achievement of that goal.'” Id. (quoting FulliloveÂ v. Klutznick, 448 U.S. 448, 480, 100 S.Ct. 2758, 2775, 65 L.Ed.2d 902Â (1980)). Four justices in Wygant also expressed the view thatÂ “societal discrimination” is not a sufficient basis for demonstrating aÂ compelling government interest. I think the Richmond ordinance easily
satisfies Justice Powell’s two-prong test and, assuming that a majority of theÂ Court eventually will adopt the “societal discrimination” modification, itÂ satisfies the test even as modified.
I.Â On April 11, 1983, the Richmond City Council, the legislativeÂ body of the City of Richmond, voted six to three to adopt the affirmative action ordinance at issue in this case. It acted inÂ response to information presented at a public hearing held that day 1363*1363 that, among otherÂ things,Â indicated that although minority groups made up fifty percent of the City’s population, onlyÂ two-thirds of one percent of the City’s construction contractsÂ from 1978-1983 were awarded to minority businesses. The ordinance required allÂ contractors to whom the CityÂ awarded construction contracts to subcontract at least thirty percent of theÂ dollar amount of the contract to minority business enterprises (MBEs) unless theÂ City waived the requirement.
The ordinance was expressly remedial, “enacted for the purpose of promotingÂ wider participation by minority business enterprises in the construction ofÂ public projects.” It automatically expires on June 30, 1988.
During a prolonged debate prior to enacting the ordinance, the CouncilÂ reviewed the history of public procurement in Richmond. The Council andÂ witnesses had available historical records of city contracting, which showedÂ that minorities, who constituted fifty percent of the City’s population, had been
awarded over a five-year period only two-thirds of one percent of the City’s contracting business. Â The debate was sharp, and the issue was well defined. Unchallenged statements ofÂ council members demonstrated that the ordinance was designed to serve a remedialÂ purpose. One councilman observed that the Council had “reviewed the history ofÂ the construction contracts” and structured the proposed ordinance in accordanceÂ with federal law (presumably the statute interpreted by the Supreme Court inÂ Fullilove). Another councilman stated:
And I can say without equivocation, that the general conduct in the
construction industry in this area, and the State and around the nation, is one
in which race discrimination and exclusion on the basis of race is
I think the situation involved in the City of Richmond is the same, and I
would like to give the Clerk a copy of the listings of the contracts for the
past five years awarded by the City of Richmond. Contracts totalling
over 124 million dollars. And less than one percent were given â were awarded to
minorities. I think the question of whether or not remedial action is required
is not open to question.
A city councilman and theÂ city manager further urgedÂ that the construction industry discriminated against persons on the basis ofÂ race, both in the city of Richmond and the state ofÂ Virginia. A number of contracting association representatives took part in theÂ hearing, and none denied this claim â although several asserted that their ownÂ organizations did not discriminate on the basis of race. Proponents of 1364*1364 the ordinance assertedÂ that this discrimination was parallel to and part of the discrimination that
currently existed in the nation’s construction industry. Likewise,Â opposing witnesses and council members did not deny this assertion. As noted,Â after the debate ended the Council approved the “set-aside” ordinance by a voteÂ of six to three.
A. Â In the majority’s view, the Council totally failed to establish priorÂ discrimination in the awarding of public construction contracts. This is aÂ slippery foundation upon which to build the principal part of itsÂ opinion.Â Assuming, however, a requirement that lacked majority support in Wygant,Â I am persuaded that the Richmond Council had a firmÂ basis for believing it had engaged in past discrimination in awarding publicÂ contracts.
Initially, it is essential that we keep our appellate task in the properÂ perspective. We are not reviewing findings of fact and, as the majorityÂ concedes, we do not review the Council’s actions under the same criteria byÂ which we review judicial decisions. If that were the case, our review wouldÂ intrude into the local legislative process and impose undue limitations on localÂ policymakers. Here, however, we need only be assured that the council members,Â “who are presumably fully aware both of their duty under federal law to respectÂ the rights of all their [contractors] and of their potential liabilityÂ for failing to do so, act[ed] on the basis of information which g[ave] them aÂ sufficient basis for concluding that remedial action is necessary….” Wygant,Â 106 S.Ct. at 1855-56 (O’Connor, J., concurring). As Chief Justice Burger hasÂ observed, “Congress, of course, may legislate without compiling the kind ofÂ `record’ appropriate with respect to judicial or administrative proceedings.” Fullilove,Â 448 U.S. at 478, 100 S.Ct. at 2774 (plurality opinion). The Chief JusticeÂ was considering congressional power in a tripartite government context, but his
observation also relates to the legislative nature of the proceedings. We shouldÂ at least give similar deference to the Council’s proceedings. Considering theÂ gross disparity between the resources of the City Council of Richmond and the United StatesÂ Congress, I am convinced that the Council proceeded on a firm basis for
believing that its ordinance was necessary to remedy the effects of prior racialÂ discrimination in the awarding of public construction contracts.
The Council was satisfied that the pervasive discrimination existing in theÂ nation’s craft unions and construction businesses also existed in Richmond. Minority contractorsÂ had received only two-thirds of one percent of city construction contractsÂ between 1978 and 1983, although the minority population of Richmond during this period wasÂ approximately fifty percent. The Council was convinced that this disparity
resulted from purposeful discrimination against minority contractors.
I would not disagree with the majority’s observation that the Council did notÂ make particularized findings of past discrimination. 1365*1365 No one testified, forÂ example, that he had applied for a city contract and was denied itÂ because he was black. However, not only is such evidence “hard to come by,” but
municipal legislative proceedings simply are not geared to producing it, even ifÂ it is available. Additionally, as Justice O’Connor recognized, the requirementÂ of such a mea culpa finding might be fatally counter-productive to theÂ concept of affirmative action.
A statistical showing is not a prerequisite to an affirmative action plan andÂ is particularly inappropriate in situations of this type. There are, forÂ example, one hundred thirty members in the general contractor association of Richmond. None are black. Â Information developed during the council debate revealed that blacks constituteÂ less than one percent of construction contractors involved in all crafts. TheÂ award of two-thirds of one percent of public contracts to an approximatelyÂ equivalent percentage of qualified minority contractors would hardly establish aÂ statistical prima facie case of discrimination.
It seems inevitable, however, that a proof scheme requiring a comparison ofÂ the percentage of contracts awarded with this small qualified pool of minorityÂ contractors would ensure the continuation of a systemic fait accompli,Â perpetuating a qualified minority contractor pool that approximates two-thirds
of one percent of the overall contractor pool. It is trueÂ that in a case amenable to statistical proof, a comparison of the percentage ofÂ construction contracts awarded to minority contractors and the percentage ofÂ minorities in the general population usually would be probative of “societalÂ discrimination.” I suggest, however, that two-thirds of one percent compared toÂ a minority population of fifty percent breaks the bounds of the sometimesÂ suspect “science” of statistics and is probative of a good deal more than
In my view, therefore, not only was the traditional statistical dataÂ unavailable, it was not necessary to support the Council’s conclusions. TheÂ Council, for the reasons I have discussed, had a firm basis for concluding that
the remedial ordinance was necessary to cure the ills of past discrimination inÂ awarding public contracts.
As I have said, this “firm basis” satisfies the compelling state interestÂ test, even considering the “societal discrimination” limitations that mightÂ modify that requirement. Justice Powell in Wygant stated:
Societal discrimination, without more, is too amorphous a basis for
imposing a racially classified remedy.
. . . . .
No one doubts that there has been serious racial discrimination in
this country. But as the basis for imposing discriminatory legal remedies
that work against innocent people, societal discrimination is insufficient and
Wygant,Â 106 S.Ct. at 1848 (plurality opinion). Justice Powell expressed this concernÂ against the background of the explicit approval by the circuit court inÂ Wygant of 1366*1366Â the “role model” and “societal discrimination” bases for the affirmative actionÂ plan involved there. In this case, however, there was no suggestion before theÂ Council that the RichmondÂ business community needed a “role model” in the form of highly visible minorityÂ contractors performing public work, or even that the minimal presence of
minority contractors in that endeavor was caused by such “societal”Â discriminatory factors as past inferior education or lack of access to socialÂ institutions.
The conclusions that emerged from the Council’s debate concerned the City’s previous discrete
discrimination in awarding contracts for public construction projects. However,Â even if the lack of contracts awarded to minority contractors resulted from bothÂ societal discrimination and discrete discrimination in public construction, thatÂ fact should not preclude an affirmative action remedy for the latter. The line
between “societal” discrimination and discrete discrimination may in factÂ sometimes be illusory. For example, Justice O’Connor noted that the court ofÂ appeals in Wygant apparently had assumed “that in the absence of aÂ specific, contemporaneous finding, any discrimination addressed by anÂ affirmative action plan could only be termed `societal.'” Wygant,Â 106 S.Ct. at 1854 (O’Connor, J., concurring). She emphasized that such anÂ assumption was false. Id. Here, “societal discrimination” may have been aÂ force encouraging disparate treatment in many specific areas of human endeavor. Â The Council, however, was entirely concerned with discrimination discretelyÂ directed at minority contractors, not with the general “societal discrimination”Â that only coincidentally included contractors within its negative sweep.
I also think the majority completely misses the mark with its conclusion thatÂ the ordinance is not narrowly tailored to achieve its remedial goal. There is noÂ question, of course, that such tailoring is an essential element of anÂ affirmative action plan. In Fullilove, however, Justice 1367*1367 Powell noted that the
Supreme Court “has not required remedial plans to be limited to the leastÂ restrictive means of implementation.” Fullilove,Â 448 U.S. at 508, 100 S.Ct. at 2790 (Powell, J., concurring). Moreover,
Justice Powell identified several considerations to guide the determination ofÂ whether the plan is sufficiently narrow, e.g., the duration of the plan,Â the availability of waiver provisions, the relationship between the percentageÂ of minority workers to be employed and the percentage of minority group members
in the relevant population or work force, and the effect on innocent thirdÂ parties. 448Â U.S. at 510-11, 100 S.Ct. at 2791 (Powell, J., concurring). I am convincedÂ that under these criteria the ordinance is sufficiently narrow.
The first two criteria need little discussion. The Richmond Plan is designed toÂ last only five years. Its waiver provisions were purposefully drawn to parallelÂ those approved in Fullilove. Even the majority concedes, as it must, thatÂ these factors help narrow the scope of the ordinance.
The third criterion identified by Justice Powell requires a more detailedÂ analysis. It must be conceded that a set-aside plan limited to the currentÂ percentage of minority contractors would not eliminate the present low level ofÂ minority participation in government contracting. In remedying the effects ofÂ discrimination, a program obviously must set aside much more than two-thirds ofÂ one percent of subcontract work if it is to encourage minorities to enter theÂ contracting industry and encourage existing minority contractors to grow. See Fullilove,Â 448 U.S. at 513-14, 100 S.Ct. at 2792-93 (Powell, J., concurring) (10%
set-aside acceptable, where 17% of the population and only 4% of the contractorsÂ were minority group members); SchmidtÂ v. Oakland Unified School Dist., 662 F.2d 550, 559 (9th Cir.1981),Â vacated on other grounds, 457Â U.S. 594, 102 S.Ct. 2612, 73 L.Ed.2d 245 (1982) (25% goal acceptable in
light of city’s 34.5%Â non-white population; decision vacated for failure to reach merits of state
statutory issue prior to deciding constitutional claim); SouthwestÂ Washington Chapter, Nat’l Elec. Contractors Ass’n v. Pierce County, 100Â Wash.2d 109, 667 P.2d 1092, 1101 (1983) (MBE participation goal of 11% setÂ at slightly less than county’s minority population held acceptable). Common
sense dictates that judging the set-aside percentage by referring to the smallÂ proportion of existing MBEs in the economy would perpetuate rather thanÂ alleviate past discrimination.
As to Justice Powell’s last suggested criterion, i.e., the effect onÂ innocent third parties â the favoring of a percentage of 1368*1368 minority contractorsÂ will, of course, disfavor a percentage of nonminority contractors. That is theÂ negative side of the necessary balancing in any affirmative action program:
“innocent persons may be called upon to bear some of the burden” of remedyingÂ the effects of discrimination. Wygant,Â 106 S.Ct. at 1850 (plurality opinion). Here, however, as with hirings
in employment cases (as opposed to layoffs), the result is not to depriveÂ a nonminority member of something already possessed but to limit temporarily aÂ future opportunity. This distinction has been noted with approval in a number ofÂ Supreme Court cases. In Wygant, for example, Justice Powell said:
In cases involving valid hiring goals, the burden to be borne
by innocent individuals is diffused to a considerable extent among society
generally. Though hiring goals may burden some innocent individuals, they simply
do not impose the same kind of injury that layoffs impose. Denial of a future
employment opportunity is not as intrusive as loss of an existing
106Â S.Ct. at 1851 (plurality opinion) (emphasis in original). The ordinance isÂ narrowly drawn; it satisfies all of the Fullilove criteria.
For all these reasons, I would affirm the judgment of the districtcourt .
 Unless otherwiseÂ noted, the references to Wygant herein refer to the plurality opinion.Â The plurality opinion of Justice Powell was joined by Chief Justice Burger andÂ Justice Rehnquist; it was also joined in part by Justice O’Connor, who wroteÂ separately. Justice White concurred in the judgment and wrote separately.
Our analysis of the Richmond plan comports, weÂ believe, with the views expressed in all three opinions. Although Justice WhiteÂ did not elaborate in Wygant on the requirements of particularizedÂ findings and narrowly tailored means, he certainly did not indicate that heÂ would permit localities greater latitude in this regard than Justices Powell andÂ O’Connor. Of critical importance is the fact that five Justices concurred in theÂ judgment that the racial preference in Wygant was unconstitutional.
 The SupremeÂ Court’s decision in Johnson,Â supra, does not alter Wygant‘s requirement of a showing of
prior discrimination. The Johnson Court addressed only a Title VII claim,Â not a Fourteenth Amendment claim such as the one now before us. The Court statedÂ that if a Fourteenth Amendment claim were before it in Johnson, theÂ Wygant standard would come into play. 107Â S.Ct. at 1446 n. 2; id. at 1449-50 n. 6.
 The majorityÂ correctly states that five Justices concurred in the judgment that the remedy inÂ Wygant was unconstitutional. It also properly notes, albeit somewhatÂ implicitly, that Justice White, who provided the crucial fifth vote in the case,Â did not join in the opinions of either Justice Powell or Justice O’Connor. The
majority’s assertion, therefore, that the “Wygant Court reject[ed] …societal discrimination as a basis for remedial action,” At 1359, is misplaced.Â Only four Justices adopted this position, Justice White did not.
 At the hearing,Â the Council heard from: Esther Cooper; Freddie Ray, President of Task Force for
Historic Preservation in Minority Communities; Stephen Watts, attorneyÂ representing Associated General Contractors of Virginia; Richard Beck, presidentÂ of a local plumbing contractors’ association; Mark Singer, a representative ofÂ the electrical contractors’ association; Patrick Murphy, American Subcontractors
Association; Al Shuman, Professional Estimators Association. During the debateÂ between Council members, those opposed to the ordinance contended it wasÂ unfeasible because there were insufficient numbers of minority contractors,Â because it would inflate contract bids and because it would not be conducive to
top quality work. Council members favoring the ordinance emphasized the historyÂ of discrimination in the construction industry, the current difficultiesÂ encountered by MBEs in the Richmond area, and the success
of similar set-aside programs in other parts of the country. Hearing onÂ Adoption of Minority Business Utilization Plan, Richmond City Council, April 11,Â 1983.
 One of theÂ contractor representatives speaking in opposition to the bill cited statisticsÂ to the effect that, of the construction contractors in the United States, onlyÂ 4.7% were minority contractors and 41% of that figure were located in fiveÂ states. The balance were scattered among the other 45 states, including
Virginia. In other words, in a 45-state area (including Virginia) only 2.8% ofÂ the contractors were minorities. The spokesman for the general contractors ofÂ Virginia testified that there were 600 contractors in the state association andÂ 130 in Richmond. None wereÂ black. Other witnesses testified that none of the 150 Virginia plumbing, heatingÂ and cooler contractors were black; that three of the 200 electrical contractorsÂ in the state were black; that none of the 150 to 200 Virginia members of theÂ American Subcontractors Association were black; that one of 60 members of theÂ central Virginia contractors association was black; and that one of 45Â professional estimators in the Richmond association wasÂ black.
 The SupremeÂ Court in UnitedÂ Steelworkers of America v. Weber, 443 U.S. 193, 198 n. 1, 99 S.Ct. 2721,Â 2725 n. 1, 61 L.Ed.2d 480 (1979), noted that: “[j]udicial findings ofÂ exclusion from crafts on racial grounds are so numerous as to make suchÂ exclusion a proper subject for judicial notice.”
 It must beÂ emphasized that Wygant simply does not mandate “particularized findings”Â of “prior discrimination by the government unit involved,” At 1357 andÂ 1358 (emphasis in original), as a constitutional prerequisite to the validity ofÂ a race-conscious remedy for unlawful discrimination. The suggestion that aÂ public entity may never implement such a remedy to redress the effects of
discrimination it had not perpetrated is supported only by Justice Powell’sÂ opinion for a three-Justice plurality. Even that opinion did not make, in theÂ words of the present majority, “particularized findings … [of actualÂ discrimination] essential.” Id. at 1357. Indeed, a majority of the CourtÂ disclaimed any such requirement, see Wygant,Â 106 S.Ct. at 1853 (O’Connor, J., concurring), and only four Justices would
expressly require a public actor to document (at minimum) that it “has a firmÂ basis for believing that remedial action is required.” See id.
 Under theÂ view held by a majority of the Court in Wygant, such findings clearly areÂ not necessary. See supra p. 1363, n. 7. In her concurring opinion,Â Justice O’Connor stated “[t]he imposition of a requirement that public employersÂ make findings that they have engaged in illegal discrimination before theyÂ engage in affirmative action programs would severely undermine public employers’Â incentive to meet voluntarily their civil rights obligations.” Wygant,Â 106 S.Ct. at 1855 (O’Connor, J., concurring).
 To requireÂ such a proof scheme, as does the majority, creates a gross anomaly. ToÂ illustrate, assume that in some metropolitan areas, the percentage of qualifiedÂ minority contractors is approximately equivalent to the percentage of minoritiesÂ in their general population. An affirmative action plan might be allowed in
these areas because there would be a statistical basis to show a discrepancyÂ between the percentage of minorities awarded contracts and the percentage ofÂ qualified minority contractors. In contrast, a plan would not survive the proofÂ scheme in areas where discrimination had effectively prohibited the entry of
minorities into the contracting business, as in Richmond, because there wouldÂ be no discrepancy between the two points of comparison. It is anomalous thatÂ truly pernicious discrimination could have the compound effect of blockingÂ remedial action.
 A goodÂ argument can be made that the converse of Justice Powell’s statement is alsoÂ true â discrimination that is not amorphous cannot merely be labeled “societalÂ discrimination” and dismissed from consideration in establishing affirmativeÂ action programs. Lawyer and humanitarian that he is, I cannot believe thatÂ Justice Powell meant to dismiss concrete examples of man’s inhumanity to manÂ simply because the deprivation was not caused by an identified employer orÂ governmental representative. What is amorphous to one unaffected may be all tooÂ painfully clear to one whose livelihood has been adversely affected or whoseÂ children cannot receive opportunities equal to their brethren. I do notÂ understand Justice Powell’s position to be that societal discrimination canÂ never be part of an appropriate basis for imposing such a remedy. Instead, IÂ believe he is saying that before an entity enacts an affirmative action program,
it must have a strong basis for concluding the program is necessary to correctÂ racial imbalances directly attributable to racial discrimination, whether or notÂ it is in part societal discrimination.
In Wygant, for example, a number of unexplained reasons could haveÂ accounted for the disparity between the percentage of minority teachers and theÂ percentage of minority students in the Jackson school system. A generalizedÂ belief that some amorphous, or “societal,” discrimination contributed to thatÂ disparity was insufficient to justify the School Board’s affirmative actionÂ program. In Fullilove, however, the program constituted an appropriateÂ remedy, in light of Congress’ well-documented finding that both public and
private discrimination directly contributed to the small percentage of publicÂ contracts awarded minority contractors. There, Justice Powell concurred in theÂ Court’s judgment that upheld Congress’ ten-percent set-aside program forÂ minority contractors.
 As anÂ alternative basis for its holding, the majority concludes that the ordinance isÂ not narrowly tailored to the remedial goal of eliminating discrimination. ItÂ reasons that the thirty-percent minority set aside is over-inclusive andÂ hypothesizes that in certain contracts the thirty-percent figure would have toÂ be adjusted upward. These conclusions of the majority lack evidentiary support;Â to use a phrase coined by the majority, they “emerge from the mists.”
In their opinions in Wygant, both Justices Powell and O’ConnorÂ reaffirmed the principle that the plaintiff bears the overall burden of provingÂ the constitutional invalidity of an affirmative action plan. Wygant,
106 S.Ct. at 1848 (plurality opinion); id. at 1856 (O’Connor, J.,Â concurring). In the present case, the plaintiff presented no evidence to theÂ trial court to suggest that the thirty-percent set aside was overbroad. TheÂ majority’s finding of over-inclusiveness, therefore, suffers from the same lackÂ of a “firm basis” that it erroneously imputes to the Council.
 The SupremeÂ Court most recently approved a similar approach in UnitedStates v. Paradise, 480 U.S. 149, 107 S.Ct. 1053, 94 L.Ed.2d 203Â (U.S.1987) where the evidence demonstrated that the Alabama Department ofÂ Public Safety steadfastly had resisted the promotion of black troopers. See
also JohnsonÂ v. Santa Clara County, 480 U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d 615
(U.S.1987); LocalÂ 28 of the Sheet Metal Workers Int’l Ass’n v. EEOC, ___ U.S. ___, 106 S.Ct.
3019, 3050-51, 92 L.Ed.2d 344 (1986). Although approaching the problem in aÂ different procedural context, the decision in Paradise demonstrated theÂ propriety of a temporarily imposed overrepresentation to meet a long-range goal. Â After considerable litigation, the district court ruled that fifty percent of
all promotions from trooper to corporal must be from a labor pool consisting ofÂ black troopers, even though that pool consisted of only twenty-five percent ofÂ the total trooper pool. Responding to the Department’s argument that thisÂ exceeded a statistical balance by twice, the Court said:
The Government suggests that the one-for-one requirement is arbitrary becauseÂ it bears no relationship to the 25% minority labor pool relevant here. ThisÂ argument ignores that the 50% figure is not itself the goal; rather it presentsÂ the speed at which the goal of 25% will be achieved. The interim requirement ofÂ one-for-one promotion … would simply have determined how quickly theÂ Department progressed toward this ultimate goal.
. . . . .
Although the appropriate ratio here “necessarily involve[d] a degree ofÂ approximation and imprecision,” TeamstersÂ v. United States, 431 U.S. 324, 372 [97 S.Ct. 1843, 1873, 52 L.Ed.2d 396]Â (1977), the District Court, with its first-hand experience of the partiesÂ and the potential for resistance, imposed the requirement that it determinedÂ would compensate for past delay and prevent future recalcitrance, while not
unduly burdening the interests of white troopers.
Paradise,___ U.S. at ___, 107 S.Ct. at 1070 (footnote omitted).