Fullilove v. Kreps, 894
| Decision Date | 22 September 1978 |
| Docket Number | D,No. 894,894 |
| Citation | 584 F.2d 600 |
| Parties | 18 Empl. Prac. Dec. P 8816, 25 Cont.Cas.Fed. (CCH) 82,718 H. Earl FULLILOVE, Fred Munder, Jeremiah Burns, Joseph Clarke, Gerard A. Neuman, William C. Finneran, Jr., Peter J. Brennan, Thomas Clarkson, Conrad Olsen, Joseph DeVitta, as Trustees of the New York Building and Construction Industry Board of Urban Affairs Fund, Arthur Gaffney as President of the Building Trades Employers Association, General Contractors Association of New York, Inc., General Building Contractors of New York State, Inc., and Shore Air-Conditioning Co., Inc., Plaintiffs-Appellants, v. Juanita KREPS, Secretary of Commerce of the United States of America, the State of New York and the City of New York, the Board of Higher Education and the Health & Hospitals Corporation, Defendants-Appellees. ocket 78-6011. |
| Court | U.S. Court of Appeals — Second Circuit |
Robert G. Benisch, Berman, Paley, Goldstein & Berman, French, Fink, Markle & McCallion, New York City, Doran, Colleran, O'Hara & Dunne, Garden City, N. Y. (Robert J. Fink, New York City, Richard L. O'Hara, Robert A. Kennedy, Robert J. Aurigema, William M. Savino, Stephen J. Smirti, Jr., Garden City, of counsel), on brief, for plaintiffs-appellants.
Robert B. Fiske, Jr., U. S. Atty., New York City, Drew S. Days, III, Asst. Atty. Gen., Civil Rights Div., U. S. Dept. of Justice, Washington, D. C. (Gaines Gwathmey, III, Dennison Young, Jr., Mary C. Daly, Patrick H. Barth, Asst. U. S. Attys., New York City, Vincent F. O'Rourke, Jr., Jessica Dunsay Silver, Washington, D. C., of counsel), for defendant-appellee Kreps.
Dominick J. Tuminaro, Asst. Atty. Gen. of the State of New York, New York City (Louis J. Lefkowitz, Atty. Gen., George D. Zuckerman, Asst. Atty. Gen. in charge of Civil Rights Bureau, Arnold D. Fleischer, Asst. Atty. Gen., New York City, of counsel), for defendant-appellee State of New York.
Before OAKES, Circuit Judge, and BLUMENFELD * and MEHRTENS, ** District Judges.
This is an appeal from the decision of the District Court, Werker, J., that upheld the constitutionality of section 103(f)(2) of the Public Works Employment Act of 1977 (PWEA), 42 U.S.C. § 6705(f)(2). The statute mandates that "no grant shall be made under this chapter for any local public works project unless the applicant gives satisfactory assurance to the Secretary that at least 10 per centum of the amount of each grant shall be expended for minority business enterprises." "Minority business enterprise" (MBE) is defined as "a business at least 50 per centum of which is owned by minority group members . . . ." The statute defines minority group members in racial terms: "citizens of the United States who are Negroes, Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts."
Appellants are several associations of contractors and subcontractors and a firm engaged in heating, ventilation and air conditioning work. Their application for a preliminary injunction on their petition for declaratory and injunctive relief to prevent the Secretary of Commerce as program administrator from enforcing the MBE provision was consolidated with a hearing on the merits. The District Court found that the provision was a constitutionally valid exercise of congressional power to remedy the effects of past discrimination in the construction industry. The District Court denied their petition and dismissed the complaint. We affirm.
In 1976 Congress enacted the Local Public Works Capital Development and Investment Act of 1976, Pub.L.No.94-369 (July 22, 1976), 90 Stat. 999-1012, 42 U.S.C §§ 6701-6735, designed to help alleviate nationwide unemployment in the economically depressed construction industry by appropriating $2 billion for public works projects. The Secretary of Commerce was to administer the program through the Economic Development Administration (EDA), charged with distributing funds under the Act to state and local governments. Congress mandated that the program be administered expeditiously 1 and the Secretary approved grants for the entire appropriation by February 1977. In May 1977, Congress supplemented the initial appropriation through the Public Works Employment Act of 1977, Pub.L.No.95-28 (May 13, 1977), 91 Stat. 116-121, 42 U.S.C. §§ 6701-6736, to the extent of an additional $4 billion.
During the consideration of the PWEA on the floor of the House, the MBE requirement was introduced as an amendment to the Act. As contained in the final enactment, the provision reads:
The appellants' attack is aimed only at the amendment; they do not contend that the inclusion of the amendment rendered the entire statute unconstitutional.
The question presented in this appeal is a narrow one. We are called upon to decide whether Congress acted in a constitutionally permissible manner in conditioning the receipt of federal grants for local public works projects under the PWEA upon the requirement that 10 percent of the grants be allocated to minority business enterprises.
Lau v. Nichols, 414 U.S. 563, 569, 94 S.Ct. 786, 789, 39 L.Ed.2d 1 (1974), Quoting 110 Cong.Rec. 6543 (1964) ().
The Secretary acknowledges that in enacting the MBE provision Congress created an explicitly race-based condition on the receipt of PWEA funds. Under modern equal protection standards, 2 racial classifications are "suspect." This denomination often triggers the highest level of scrutiny imposed by the courts. Loving v. Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). Usually when a classification turns upon an individual's racial or ethnic background, "he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest." Regents of University of California v. Bakke, --- U.S. ----, ----, 98 S.Ct. 2733, 2753, 57 L.Ed.2d 750 (1978) (opinion of Powell, J.); In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973). Whether rigid scrutiny is mandated whenever an act of Congress conditions the allocation of federal funds in a manner which differentiates among persons according to their race is a question we need not reach, for we are of the opinion that even under the most exacting standard of review the MBE provision passes constitutional muster. 3
The principles which the court below applied in rejecting the appellants' contentions that the amendment was either unconstitutional or in violation of the Civil Rights Act of 1964 are not in dispute on this appeal. However, we restate them briefly in order to put the appellants' argument that they were misapplied by the trial judge into sharper focus.
The appellants agree that the district judge correctly decided that "strict scrutiny" was required, but they contend that the standard of review which such scrutiny requires was not correctly applied. Having conceded below and properly so, that "a compelling state interest is present if the racial classification is intended to remedy the vestiges of present and/or past discrimination," they advance two separate arguments that a compelling interest was not shown.
Their argument is that there was not an adequate basis for the court below to conclude that Congress' purpose was to remedy prior wrongs to minority groups who had been denied opportunities in the construction industry as a result of race discrimination. This proposition has two elements that are analytically distinct. That they are treated in combination is understandable for they are bound together and rest to some extent on the same history and policy considerations. The amendment is permissible only if it is a remedy for past discrimination. See Regents of the University of California v. Bakke, supra, --- U.S. at ----, 98 S.Ct. 2754 (opinion of Powell, J.). Whether it was Congress' Purpose to enact a remedy for past discrimination is one question. Whether such discrimination occurred in the past is another question. The second question depends upon an assessment of historical facts, the first upon what was in the mind of Congress.
Congressional purpose is relevant to consideration of whether the classification is permissible. Under any equal protection test "the classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation . . . ." F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920). 4 More recently in San Antonio Independent School District v. Rodriguez, 411...
To continue reading
Request your trial
-
Ass'n Against Discrimination v. City of Bridgeport
...cf. Regents of University of California v. Bakke, 438 U.S. 265, 300-301, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978); Fullilove v. Kreps, 584 F.2d 600, 607 (2d Cir. 1978), cert. granted, 441 U.S. 960, 99 S.Ct. 2403, 60 L.Ed.2d 1064 (1979), concludes that no undue reverse discrimination would resul......
-
Brown v. New Haven Civil Service Bd.
...affirmative action programs within constitutional limits to redress the deprivations minorities have endured, see Fullilove v. Kreps, 584 F.2d 600 (2d Cir. 1978), cert. granted, ___ U.S. ___, 99 S.Ct. 2403, 60 L.Ed.2d 1064 (1979), and as private parties are permitted under Title VII itself ......
-
Association Against Discrimination in Employment v. City of Bridgeport
...take into account, to the extent relevant, cases of this circuit decided since its original order. See, e. g., Fullilove v. Kreps, 584 F.2d 600, 606-09 (2d Cir. 1978); Prate v. Freedman, 583 F.2d 42 (2d Cir. 2. During the course of this litigation, the district court, as outlined above, twi......
-
Guardians Ass'n of New York City Police Dept., Inc. v. Civil Service Com'n of City of New York
...426 U.S. at 239, 96 S.Ct. at 2047, citing Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). See Fullilove v. Kreps, 584 F.2d 600, 602 n.2 (2d Cir. 1978), aff'd, 441 U.S. 960, 99 S.Ct. 2403, 60 L.Ed.2d 1064 (1980), and cases cited therein.26 Where performance in training is......