Michigan Road Builders Association, Inc. v. William G. Milliken

583 Hoosier, hybrid 301, but a § claim, amount- representation 301/fair § challenge private to ‘the direct

ing to “a disputes under collec- settlement [the ” Mitchell, agreement].’

tive-bargaining (Stewart, S.Ct., at at 66

supra, 1565] [101 quoting Hoo-

J., concurring judgment), S.Ct., U.S., at

sier, at 383 702 1111]. [86 165, 2291.11 103 S.Ct. at at

DelCostello 171, 87 Sipes, 386 U.S. v. also Vaca

See (1967); 903, 842 Smith v. 17 L.Ed.2d

S.Ct. (5th 1049, Co., 748 F.2d 1053 Bus

Kerrville

Cir.1984); Freight, Findley v. Motor Jones Cir.1981). 957, (3rd 953, 958

639 F.2d judgment

Accordingly, we AFFIRM the all defendants. ROAD BUILDERS

MICHIGAN INC., al.,

ASSOCIATION, et

Plaintiffs-Appellants,

v. MILLIKEN, al., et

William G.

Defendants-Appellees.

No. 86-1239. Appeals, Court of

United States Circuit.

Sixth 4,

Argued May 25, 1987.

Decided Nov. Rehearing En Banc

Rehearing and 23,1988.

Denied Feb. 1048, (1976); Workers Auto 47 L.Ed.2d DelCostello: United cases cited in 11. See also the Mitchell, Service, Corp., U.S. 383 U.S. Inc. v. Hoosier Cardinal Parcel (1981); v. An- L.Ed.2d 732 Hines 16 L.Ed.2d Inc., Freight, Motor chor

John B. (argued), Butzel, Weaver Long, Gust, Klein, Zile, and Detroit, Van Mich., for plaintiffs-appellants.

Brent E. Simmons (argued), Lansing, Mich., for defendants-appellees. LIVELY, Before Judge, Chief and ENGEL and KRUPANSKY, Circuit Judges.

KRUPANSKY, Judge. Circuit Plaintiffs-appellants Michigan Road Association, Builders (Michigan et al. Road or plaintiffs) Builders appealed from the district court’s order granting summary judgment in favor of the defendants-appel- lees, (defendants) in this rights civil action commenced purpose for the of challenging the constitutional validity of 1980 Mich. (Public 428), Pub.Acts 428 Act Mich.Comp. 450.771, Laws seq,1 et particular, § the Michigan Road charge Builders Public Act 428 which “set portion aside” a of state contracts for minority owned businesses (MBEs) and woman owned businesses (WBEs) impinges upon Equal the Protec- tion Clause of the Fourteenth Amendment to the Constitution. Section 2 of Public Act Mich.Comp.Laws pro- 450.772 § vides that after the year, 1984-85 fiscal each state department must award not less than expenditures 7% its for construc- tion, goods, and services to MBEs and not less than 5% to WBEs.2 Under Public Act Plaintiffs-appellants (1) 1. non-profit "are several owned and women owned businesses each are, associations general, whose members department except provided in subsection firms, construction suppliers, contractors and (6): done, who have or doing are business the with (a) business, For goal owned the Michigan, (2) State of profit and corpo- various for 1980-81 shall be 150% of the ex- actual had, seek, rations who have or contracts 1979-80, penditures goal for the for 1981-82 Michigan.” the State of Michigan Road Builders shall be expenditures 200% of the actual for Milliken, (E.D. Ass’n F.Supp. 1980-81, goal the for 1982-83 shall be 200% of Mich.1983). Defendants-appellees are William expenditures 1981-82, the actual goal for Milliken, G. former Michigan, Governor of for 1983-84 shall be 116% the actual ex- Michigan Department Management the Budget, penditures 1982-83, for level of effort Miller, Gerald H. the former Director of at expenditures not less than 7% of shall be Michigan Department Management maintained thereafter. Budget, Michigan Department Transpor- (b) business, For woman goal owned tation, Woodford, and John P. Di- former for 1980-81 shall be 150% the actual ex- Michigan Department rector Transpor- penditures 1979-80, goal for for 1981-82 tation. shall be expenditures 200% of the actual for Mich.Comp.Laws provides: 1980-81, § 450.772 goal for 1982-83 shall be 200% of (1) construction, Sec. 2. goods, expenditures 1981-82, the actual goal and ser- for procurement policy vices department for each for 1983-84 shall be of the 200% actual ex- provide following shall percentage for the penditures 1982-83, goal for for 1984-85 expenditures to be awarded to expenditures 1983-84, shall be 140% black, “minority” “person is a who is ble to the business accrues to the oriental, eskimo, or an American hispanic, women shareholders.” Mich.Comp.Laws 450.771(e), Indian,” Mich.Comp.Laws 460.7710). § § “minority owned business” is “a business Road Builders commenced more than enterprise of which 50% present on July action 1981 in the voting shares or interest the business United States District Court for the East- controlled, owned, operated by individ- Michigan seeking ern District of declarato- minority of a and who are members uals ry injunctive and relief the enforce- respect to which more than with 50% provisions ment of the set-aside of Public profit or loss attributable to the busi- net particular, Act 428. plaintiffs the shareholders who are mem- ness accrues to charged provisions the set-aside of Mich.Comp.Laws minority.” of a bers Equal Public Act 428 violated the Protec- 450.771(f). A “woman owned business” § Amendment, tion Clause of the Fourteenth more than of is “a business of 50% which 1981, 42 as well as U.S.C. 1983 and §§ busi- voting shares or interest the the 2000d,3 by according racial and ethnic mi- owned, controlled, operated by ness is preference compet- norities and women respect more and with to which women profit expenditures. net or loss attributa- for than After dis- 50% who, Every person any than and this level of effort at not less 5% of under color of stat- ute, ordinance, custom, regulation, usage, expenditures be maintained thereafter. or shall achieved, any Territory (2) State or or year goals the District of first are not If the Columbia, subjects, subjected, or causes to be legisla- governor shall recommend to the the any per- citizen of the United or States other programs minority changes ture to assist jurisdiction dep- son within the thereof to the and woman owned businesses. rights, any privileges, rivation of or immuni- (3) meeting department, to assist in Each laws, ties secured the Constitution and construction, goods, procure- and services the party injured shall be liable to the in an ac- expenditures percentages set forth in ment law, equity, proper tion at suit in or other (1), provisions subsection shall include for the proceeding purposes for redress. For the joint ven- accomodation of subcontracts and section, any Congress applicable this Act of provisions shall be established tures. exclusively the of Columbia shall District governor require and shall a bidder to be considered to be a statute of the District of or indicate the extent of owned Columbia. participation. women owned business provides: 42 U.S.C. 2000d § (4) Only portion prime of a contract shall, person No in the United States on the or women reflects owned race, color, ground origin, or be national participation shall be con- owned business in, participation excluded from be denied the meeting requirements of sub- sidered in of, subjected or be to discrimination benefits section any program activity receiving or Fed- under (5) Minority owned or woman owned busi- eral financial assistance. comply require- the same nesses shall protections afforded these sec Because including, expected ments of other bidders protections af tions are coextensive with the to, being adequately but not limited bonded. Equal Protection Clause of the forded (6) any If the bidders for contract do Amendment, Regents Cal Fourteenth Univ. oper- qualified minority owned and include 2733, Bakke, 265, 287, 333, v. 98 S.Ct. if. 2746, 2770, business, operated ated or woman owned and (1978) (§ 1983 and 57 L.Ed.2d 750 the contract shall be awarded to lowest 2000d); Young, Police Ass'n v. Detroit Officers' qualified perform otherwise the con- bidder 671, (6th Cir.1979) (§ 1981), 691-92 608 F.2d tract. 938, 3079, denied, 452 U.S. 69 cert. (1981), only analyze this court need L.Ed.2d 951 provides: 42 U.S.C. 1981 § Amendment Public Act 428 under Fourteenth jurisdiction 'persons of the Unit- All within equal protection Gen. standards. See Associated right every ed States shall have the same City County & San Contractors Cal. v. Territory to make and enforce con- State and tracts, Francisco, (9th Cir.1987). F.2d 928 n. 11 813 sue, evidence, give parties, be and to alleged complaint Plaintiffs also in their pro- equal the full benefit of all laws and Civil Title VII of the Public Act 428 violated ceedings security persons proper- seq. Rights U.S.C. 2000e et § Act of 42 citizens, — ty enjoyed by white and shall be Transportation Agency, U.S. See Johnson v. punishment, pains, penalties, subject es, licenses, —, to like tax- 1446 n. 94 L.Ed.2d 615 kind, every (1987) analysis (suggesting and to and exactions of that Title VII differs analysis). equal protection no other. from constitutional They appeal. argument provides: this have abandoned § 42 U.S.C. covery completed, had been parties tiny.” Id. at 98 S.Ct. at (plurality filed cross for summary judgment, motions opinion). August and on the district court When a classification denies an individual Michigan Road Builders Ass’n v. Millik- en, violate the fendants’ Fourteenth Amendment and determined that Public Act 428 did not F.Supp. motion for Equal Protection Clause of the (E.D.Mich.1983). summary judgment. granted Mi- de- background, it pect. opportunities or ers solely because of his race or ethnic ^[*] # must be ^[*] benefits # regarded enjoyed by # as sus- $ oth- chigan appealed, Road Builders We have held that in justify “order to appeal court dismissed the use because the of a suspect dis- classification, a trict court had not decided State all must claims show that purpose its or in- against Michigan Department of Trans- terest is both constitutionally permissible portation. Michigan Road substantial, Builders Ass’n and that its use of the Milliken, (6th Cir.1984). F.2d 1456 classification is ‘necessary ... to the ac- Thereafter, the district court entered complishment’ an of its purpose or the safe- disposing order remaining charges guarding of its interest.” Michigan Road Builders Ass’n v. Millik- timely appeal. argued that the district incorrect constitutional Michigan Road Builders commenced this en, against 654 the F.Supp. legal standard Department validity 3 (E.D.Mich.1986),and the On appeal, of of Transportation, court Public Act 428. determine the applied plaintiffs the the Id. at opinion) (citations This the Constitution forbids. origin is discrimination for its own sake. for no reason other than race or ethnic Preferring members ^[*] 305-07, ^[*] 98 S.Ct. at omitted). ^[*] of 2756-57 (plurality ^[*] any # one group ^[*] In Klutznick,

In v. addressing equal 448, Fullilove 448 protection claims, U.S. 2758, 100 S.Ct. Supreme the 65 (1980), Court has L.Ed.2d 902 employed differing the Supreme judicial probed levels of a depending review congressionally the type imposed of enacted affirmative action plan classification under embodied consti- the tutional Public Employment attack.4 1977, “Racial Works and ethnic Act of dis- 42 any tinctions of U.S.C. sort are 6701 inherently seq. et suspect § The constitutional and thus call for attack in the most that case exacting judicial lodged against the “Minority examination.” Regents Business Enterprise” Univ. Cal. v. set aside of Bakke, 265, 291, provision 438 act, U.S. 2733, 98 103(f)(2), S.Ct. 42 § U.S.C. 2748, (1978) 57 6705(f)(2), L.Ed.2d 750 (plurality opin- which required § govern- local ion) (concluding that state mental medical receiving school’s units funds public under admission program which speci- programs reserved a works to use of the funds to 10% fied positions number of student procure for racial services or supplies from MBEs. and ethnic minority applicants violated the The court determined “Congress that had Equal Clause). Protection This “most ex- abundant evidence from it which could con- acting judicial examination” has been la- clude that minority businesses have been beled Court as “strict scru- denied participation effective public con- 4. considering equal claims, protection courts legislature contention rogative that pre has the must governmental first determine whether the and even duty the "constitutional body imposing the classification at issue had steps take affirmative to eliminate the continu authority accomplish purpose. act to ing its Ful past effects of unconstitutional discrimina Klutznik, 448, 473, lilove v. 448 U.S. Wygant Educ., tion." v. Jackson Bd. 476 U.S. (1980) 267, 65 L.Ed.2d (plurality 1842, 902 1856, 106 (1986) S.Ct. 90 L.Ed.2d 260 opinion); Cal., (O’Connor, Associated J., Gen. Contractors concurring) (emphasis origi bar, 813 F.2d at nal); 928. In the case at the state Ohio Keip, Contractors Ass'n v. 713 F.2d asserted, plaintiffs dispute, 167, (6th did Cir.1983); 172-73 Associated Gen. Con designed Public Act 428 was Cal., to ameliorate the tractors Accordingly, F.2d at 929. it past effects of disputed minorities is not legislature that Michigan had competing women supply jurisdiction contracts to purpose to act for the of ameliorat the state beyond services. It is past the effects of discrimination. by procurement tracting opportunities analysis of the need for such remedial practices Justice S.Ct. at lored to the ameliorating sion therein crimination. discrimination,” Powell, achievement of Id. at at issue was and that the set aside perpetuated author of the Bakke effects of id. at the effects of “narrowly [the] 477-78, past goal” at 2776. provi- opin- dis- tai- tation. measures — governmental government identified discrimination. ameliorating ^[*] It ^[*] i.e., has a is uncontested that interest with the ^[*] significant disabling # their presence Jjt effects of interest in implemen- sjc of a ion, opinion the Court’s concurred governmental Once opinion in which filed an he stated: established, some remedial action is thus 103(f)(2) proceed we must Section Works determine whether Public [of Employment employs employed Act of remedial measures a ra- are rea- 1977] sonable. constitutionally cial classification that is

prohibited necessary unless it is a means Detroit, City Bratton v. F.2d advancing compelling governmental (6th Cir.1983) (footnote omitted), 886-87 interest. denied, cert.

79 L.Ed.2d 168 See also Detroit Police Ass’n Clause, Young, 608 F.2d Equal Protection Officers’ (6th Cir.1979)(determining that no “di equal protection component of the Due showing rect Amendment, intentional Fifth discrimina Process Clause governmental tion” governmental imposing unit any demand that distinc- plan among groups justifiable. necessary tion must affirmative action be applied plan only and that the need Different standards of review to be a “reason serving governmental simply different sorts of classifications able” means of principle eradicating past illustrate the that some classifi- interest of effects discrimination), likely legitimate denied, cations are less be to cert. 452 U.S. (1981); must than others. Racial classifications 69 L.Ed.2d 951 Ohio stringent be assessed under the most Keip, 713 Contractors Ass’n v. F.2d Cir.1983)(where (6th level of review because immutable char- compelling interest of acteristics, which bear no relation to indi- ameliorating state in effects of its need, vidual merit or are irrelevant to clear, the affirma discrimination was every governmental almost decision. plan adopted only tive action need be “rea interest). sonably calculated” to serve that (Pow- 448 U.S. at at 2783-84 decisions, essentially In these this court ell, concurring). J. scrutiny enunci relaxed the strict standard Subsequent to the Bakke and Fullilove Supreme ated Court Bakke and decisions, this circuit considered constitu- Thus, essentially re Fullilove. circuit govern- tional attacks on state and local plans quired that affirmative action be a plans. ment action mandated affirmative furthering “sig means of a “reasonable” assessing validity In constitutional governmental than nificant” interest rather plans at issue in the affirmative action “narrowly “necessary” a tailored” or cases, post-Bakke and Fullilove this circuit furthering “compelling” gov means of a scrutiny” redefined the term “strict as it ernmental interest.5 cases: applied affirmative action Educ., In stage approach Wygant to af- v. Jackson Bd. first our [T]he (6th Cir.1984), again programs an F.2d 1152 this circuit firmative action entails "sig- court in the case at bar considered the 5. While the distinction between the terms district "compelling” may negligible, having meanings nificant” and be when it ex- terms as different Educ., Wygant see v. Jackson Bd. require pressly demon- refused to defendants to (1986) 90 L.Ed.2d 260 interest, "compelling” re- strate a but instead J., (O'Connor, concurring) (discussing distinc- "significant quired inter- them to demonstrate a “compelling” "impor- tion between terms F.Supp. est.” 571 at 176-77. below, tant”), as discussed it is that the clear applied its relaxed standard review to The Court Appeals examined the uphold an affirmative layoff plan action means chosen to accomplish the Board’s embodied in a bargaining agree- collective race-conscious purposes under a test of public ment a between board of education “reasonableness.” That standard has no reversing a teachers’ union. support in the decisions of this Court. decision, rejected above, As demonstrated ... our deci- judicial relaxed scrutiny level of imposed always sions have employed a more strin- by this circuit in Wygant: gent standard —however articulated —to ted). Subsequent ling” 267, 260 advanced Wygant v. plish and whether the means chosen to accom- supported by a compelling its the achievement of decide whether governmental tion means chosen tive not conflict with constitutional guaran- tees.” There are amination. ing examination to make sure that it does must necessarily receive a most minorities, el of scrutiny does discrimination. classification based on against whites and in favor of certain erence has not been subject because nation.” erates call for the founded any to a free This Court has “consistently repudiated cause of their ancestry’ ‘[distinctions _ (1986) The Court purpose 106 S.Ct. nature sort “must be that bargaining “Racial and ethnic distinctions of based on (plurality opinion) Jackson Bd. the challenged are purpose the people must most First, has inherently 1842, 1846-47, the between citizens board the doctrine of equality.’ justified interest.” In this the therefore constitutes a be racial or ethnic criteria recognized governmental exacting judicial the State to effectuate group two whose institutions are rejecting are narrowly tailored. agreement] that any racial classifica- “narrowly layoff prongs race. education in goal.” suspect case, by a compelling classification Educ., (citations change state governmental the “compel- being Second, provision is that the lev- 90 L.Ed.2d [the “Any pref- historically to this ex- tailored to We must solely interests 476 U.S. and thus operates purpose search- merely ‘odious exami- collec- omit- sup- the op- be- ” ny: circuit constitutional validity of Public Act 428 under this circuit’s relaxed before the having issued its opinion nearly ethnic affirmative action cases propriate. that omitted). The Supreme Court left no doubt ously employed by this circuit in racial and 106 S.Ct. at 1849-50 when the claimants are not members of a tion.” class historically In the case at trative cial classification could alternative ticularly cial interest about as well and at tolerable adminis- issue must “fit” tion be used to have been used. Or ... ful alternative and less restrictive means could purpose. used in our meaning. ply most exact asserted purposes.6 Under means chosen test a state “A the The term ^[******] approach too Wygant, in narrowly different expense.” standard of pernicious intense to validity classification.” More Supreme means. "[Courts] should require purpose “Racial classifications are sim- accomplish "narrowly cases, connection between or framed to accomplish that specifically, scrutiny a more analysis erroneously decided the bar, subjected consideration whether law- has greater precision accomplish (citations judicial must be specifically Court reversed this promote tailored," strict acquired permit the district narrowly the classification at its race-conscious means must whether level ... to discrimina- review scrutiny and footnote the substantial the term any but the three so the State’s a tailored ra- chosen be frequently secondary justifica- give par- than scruti- court, previ- years nonra- made inap- may any port of the constitutional validity Having of the determined that the law of this layoff plan, which interests had requires been found Circuit that the State must dem- to be “sufficiently important” by cir- onstrate a significant this interest in ame- cuit, 1847-49, 106 S.Ct. at the Court contin- liorating past present dis- effects ued: crimination than “compel- rather ..., “unquestionably A has this Court standard ling interest” must nature enacting ^[*] examine the [Public SjC interest of ^[*] Act] record ^[*] to assess the ^[*] State ^[*] in present (citations compelling 107 S.Ct. United States discrimination 1053, 1065, omitted) interest Paradise, (plurality opinion). Be in 94 L.Ed.2d 203 remedying past a state actor.” — U.S. —, (1987) may permissibly employ the State has a ra Having determined fore a state classification, however, ameliorating interest in or ethnic it its cial established upon finding material past effects of discrimina- must make a based present evidence, it in factual has tion, must Court now determine this those classes it now discriminated 428 is a reasonable whether Act] [Public engaged If the state had not in favors. achieving that end. means against racial and ethnic mi discrimination 176-77, Brat (quoting F.Supp. at awarding supply in contracts to norities 887). The district court’s ton, at 704 F.2d in past, and services state with applica an erroneous analysis represented praesenti it it cannot assert then scrutiny as that term has been tion of strict preferring compelling has a employed by Supreme defined and such contracts. MBEs the award of Supreme ex Wygant, Court. never has held that [The Court] reasoning em disapproved of the pressly societal discrimination alone is sufficient in this case. district court ployed by the Rather, justify a racial classification. properly court had Although the district insisted some show- the Court has validity of Pub the constitutional analyzed govern- discrimination of this circuit as 428 under the law lic Act unit involved allowing before mental Bratton, Detroit Police enunciated Offi- classifications in or- limited use of racial Ass’n, Ass’n and Ohio Contractors cers’ remedy such discrimination. der opinion in this case it issued its when * * * justi- discrimination [P]rior [is] 12, 1983, must appellate court August “an on, for, the limitation fication it ren- in effect at the time apply the law adoption of race-based remedies. State’s Housing Thorpe v. ders its decision.” * # * # # * Durham, 393 U.S. 268, City Auth. of discrimination, more, (1969) without Societal 21 L.Ed.2d 474 imposing a amorphous a basis for is too also (footnote omitted). See Gulf Offshore * * * remedy. No one racially n. classified Corp., v. Mobil Oil Co. racial there has been serious doubts that n. 69 L.Ed.2d country. But as in this (1981). Accordingly, light imposing discriminato- Wygant, legal basis for mandate Supreme Court’s against inno- work legal ry remedies that legal conclusions abrogate the must court is in- societal discrimination people, cent in the case at bar. district court priate constitutional precedent bodies nic classifications evaluation. whether As indicated should a already “compelling” state interest First, be subjected adopted by discussed, a court by the review of racial or must determine a more governmental a two appro stage sup eth court could sufficient absence ture. timeless less ^[*] in their in their of # and over uphold remedies that are particularized reach into # ability expansive. # to the affect the fu- findings, # past, In # age- the a a in accordance with must act ethnic classifi of the racial or ports State] the use [A Amend- purpose of the Fourteenth a com “core If the court concludes cation. all away with ment” which is to “do exists, then deter it must pelling interest distinctions imposed governmentálly challenged action the mine whether * * * particular, on race.” [a classification is based a racial or ethnic employing that, it em- ensure before “necessary” fur must “narrowly tailored” or state] program, action an affirmative barks on ther that interest. convincing locality it has evidence that remedial For a to show that it enacted a is, it action is warranted. That must preference racial measure, as a remedial justify evidence to have sufficient it must have had a firm basis for believ- prior conclusion that there has been dis- ing that required such action was based crimination. prior discrimination locality (citations Wygant, 106 at 1847-48 itself.

Bakke, omitted) (some emphasis 438 U.S. at added). 98 S.Ct. at See also ^{[*] [*] [*] [*] [*] [*]} (“We Wygant approved preferences never a classification ... racial have limit[s] persons perceived as members of necessary aids what is practice to redress a expense relatively groups victimized at the past wrongdoing. of other in the absence innocent individuals J.A. Richmond, Croson City Co. v. judicial, legislative, or administrative 1355, 1358, 1360, (4th F.2d Cir.1987)

findings statutory or vi- constitutional (citations omitted) (emphasis original). findings such have been olations. After Accordingly, case, in the instant this court made, governmental prefer- interest must determine whether the State of Michi- ring injured groups members of at the gan possessed compelling substantial, expense of since others purging present alleged past effects of legal rights of the victims must be vindicat past ineq- virtue of its ed.”) (citations omitted) added); (emphasis uitable treatment of accomplish MBEs. To Son, J. Edinger City & Inc. v. Louis result, this court must decide whether ville, (6th Cir.1986) 802 F.2d Michigan legislature, upon based (“[T]he city required present should be it, evidentiary factual record before “had a discrimination.”); evidence of invidious firm believing basis for that such action Chapter South Fla. Associated Gen. required prior based on discrimina- Metropolitan Contractors Am. v. Dade Co., tion” the state itself. J.A. Croson (11th Cir.) County, 723 F.2d 851-52 822 F.2d at 1360.6 (“[Ajdequate findings have been [must] An made to ensure examination of the governmental body that the evidence asserted- ly is remedying present upon by relied past effects of the defendants in this advancing support discrimination rather than action as one for their contention that racial or group’s ethnic Michigan legislature interests over an- had firma basis other_”) (emphasis original), cert. de- concluding engaged that the state had nied, 83 L.Ed. awarding discrimination in contracts for (1984); 2d 150 Associated Gen. Contrac clearly and services indicates that Cal., tors (“[S]tate 813 F.2d at 930 and Michigan had developed material evi- governments local only act to correct [can] support dence to a conclusion that it had a their own wrongdoing_”). More compelling adopting interest in the racial recently, the Fourth has Circuit stated: and ethnic distinctions at issue in the case an governmental asserted inter- [B]efore at bar. The defendants have relied est in preference accepted racial can be conclusory certain historical resumes of un- as “compelling,” findings there must be legislative related proposed enactments and Findings of discrimination. so- enactments, reports, executive and a state suffice; cietal discrimination will not private study funded conducted

findings “prior must concern discrimina- This documentation is not of dis- reflective tion by government involved.” unit criminatory action the State of Michi- # # ^{[*] [*]} # # gan.7 have,

6. Because the factual in this case is com- record 7. The defendants in this action as a de plete fense, only and this court’s function is to deter- Michigan "admitted" that the State of had presented engaged mine whether the impermissible evidence in discrimination in the standard, legal district court satisfied a remand generally Appel award of state contracts. See unnecessary. Corp. Bose Brief, pp. v. Consumers Union lee’s 29-32. This "admission" is of U.S., Inc., little relevance and does not relieve this court of 80 L.Ed.2d duty legisla- its to determine whether remedial this in support have directed court’s Committee of S.B. The defendants Norton Berman, memoranda”8 con- to “executive L. Director of the attention Office of Eco- legislation considered proposed cerning Expansion Department nomic within the during legislature 1971 and Michigan Commerce, underrepresenta- indicated that first of these mem- years. The subsequent contracting tion of MBEs state resulted (H.B.) Bill House concern oranda from factors other than discrimination bonding relaxed (1971) would have which Michigan: the State of for state construction con- requirements minority Small and businesses tradi- conjectured a be- The memoranda tracts. tionally experienced problems have bonding stringent re- the state’s lief that management, financing, and market de- small business- prohibited most quirements velopment. problems These oftentimes effectively competing for such con- fromes inability result from the of small busi- proposed would The statute have tracts. generate nessmen capital sufficient assertedly purpose the dual of fos- served operational meet their needs. growth businesses in tering the of small benefiting by increas- general the state Through public hearings a series of construction con- ing competition for state questionnaires sent minority to small and Fostering growth MBEs in tracts. businesses, persons expressed business purpose a concern or particular was not areas, their concerns in several some of legislative history of H.B. expressed in the procurement complexity which were: procedures, information distributed of (S.B.) (1975) would have Bill Senate agencies inadequate, state contracts goods and percentage of state set aside large, requirement were too there was no procurement contracts for small services part large contractors solicit purpose of this businesses. asserted minority bids from small and subcontrac- legislation foster proposed was to tors, vendors, delay paying excessive light Mi- growth of small businesses pre-award bonding costs and excessive Again, “sluggish economy.” fos- chigan’s requirements which small and not a con- tering growth of MBEs was businessmen could not meet. proposed legislation. sideration for this sj< $ $ # # # (1976) (1977)9 and S.B. S.B. patterns business have resulted [P]ast have also set aside an allotment would in the representation of minorities under state contracts for small businesses. Therefore, I community. feel business commenting upon memoranda executive if not do what state is remiss we do suggested that increas- these enactments to assure that business we can of contracts awarded to ing the number equitable pur- of state obtain an share also increase the small businesses would chasing. MBEs, predominant- number of which were who view businesses, I am aware there are those doing ly small business treatment addition, legislation preferential In 1461 included a this the state. S.B. spir- competitive set aside con- and the distortion provision which would have might agree I this economically purchasing. it of “socially for or disad- tracts so, meth- given unorthodox testimony be considered but vantaged persons.” be- opportunities are needed to create Michigan Affairs ods fore the Senate State analyzed memoranda” which and ethnic classifica- 8. The "executive tion in the form of racial fact, is, legislation prepared the Gov- by compelling pending were supported inter- tions of the state’s various executive alleviating ernor each present effects of est in departments. Wygant, 106 S.Ct. at 1849 n. 5 discrimination. ("Nor unilaterally itself can the insulate [state] essentially key question identi- constitutional con- and S.B. 10 were from 9. S.B. 1461 past, sessions ceding now introduced in successive that it has discriminated in cal and were legislature. proposal Neither a conces- that it is in its interest to make such sion.”) was enacted into law. 592c- segment society major

for a of our tain their fair share of the state’s busi- can contribute more to economic stabili- ness.

we have ty. With now in regards many to competition, industries is com- what ^{[*] [*] [*] [*] [*] [*]} The government federal petition among the and operators small other state and governments by large already are Large proceeding domination few firms. often can sell as a remedy businesses at a considera- direction to the under- price high representation lower because of volume minority ble of seg- and other sales, sys- of more efficient distribution ments of business in the business com- advertising pro- tems and more and munity. legal The issues are difficult equitably Small business cannot motion. and litigations outcomes of various im- compete disadvantages because of these possible predict. to In the meantime Mi- of size. chigan should partici- continue to be a pant in the progressive enactment of leg- testimony, As reflected Berman’s islation, which any would in case enhance doing lack of MBEs relative business with growth underrepresented these coupled objective the state was with the sectors of the community, business at reality that most MBEs were small busi- question least until the businesses, constitutionali- as a result of nesses. Small ty is resolved. size, their effectively were unable to com- pete Consequently, for state contracts. discrimination, Evidence of societal how- size, MBEs, as a their result of most were ever, is an insufficient basis for the em- effectively compete unable to for state con- ployment of racial and ethnic distinctions tracts. governments. state or local Wygant, legislative history 1848; of Public Act 428 106 Son, Inc., at Edinger J. & support itself offered no for contention 802 F.2d at 216-17. Michigan the State of intentionally consisting evidence of executive ac- against discriminated MBEs. A House designed tion to increase small business Legislative Analysis of the bill attributed participation and MBE was also insufficient scarcity MBE contracts with the support to a conclusion that the state had state to the lack of minorities within the discriminated MBEs. In business community os a result societal Governor issued Executive Directive discrimination: creating 1975-4 a task study force to small descriptions Statistical of the extent of participation business purchasing. state participation programs state busi- conducting public After two hearings nesses controlled women and minori- witnesses wherein testified small and ties are varied and sometimes contra- minority businesses’ size exper- and lack of dictory depending on the definitions used prohibited tise them from com- effectively samples and the spending of state exam- peting contracts, purchasing state however, ined. descriptions, These all task force report recommending issued its reveal that such businesses receive a dis- adoption policies procedures proportionately small share of state aid small and businesses in the spending for construction and procurement process. services proportion relation to their response report, the task force’s population. state’s That minorities the Governor issued Executive Directive and women systematically have de- been 1976-4 wherein he established the Small equal nied opportunity country in this Minority Business sad Procurement Coun- generally accept- historical fact now (Council) cil ed oversee widely “policy the declared recognized legislation tye agencies two executive branch decades. In the interests of [sic]

justice aid, counsel, as well the State of as the social and ... economic health state, legislature protect assist and should the interests of small do all that it can to ensure that business- business concerns in order to es owned minorities preserve and women ob- competitive free enterprise and to approximately procure- $21 million of state’s annual portion a fair insure that expenditures of over agencies $487 million. The agencies and ment of state minority sampling was necessarily small and of little small and placed with state be because, noted, report value as the In the Council enterprises.” business it state did not maintain report minority in which data on its first annual issued by establishing procurement agencies.12 small state objectives that the noted in state participation minority business and the statistical Because evidence was achieved. purchasing had been discrimination, of probative Urban Markets questionnaires Execu- also circulated to and con- also issued the Governor In respon- he command- ducted interviews of state officials Directive 1975-6 wherein tive purchasing goods and Department of Civil sible for services ed agencies departments. and (MDCR) state various state to assist other Rights Responses inquiries dis- developing implement- to Urban Markets’ in and departments agencies did not procedures to assure closed that most state and ing standards actively supplies, seek new sources of but awarding state con- nondiscrimination upon primarily “already relied es- report issued a instead the MDCR tracts. In purchasing contracts” when fill- over limited tablished expressed it concern in which ing new orders for and services. Directive 1975-6 compliance Executive with study only adequate particular, -indicated staff of the lack because agencies using minority per- three state were inexperience agencies and some “actively directories to seek-out” rights matters. business dealing with civil sonnel purchas- minority suppliers, and that some suggest limited did not The MDCR impres- expressed officials unfavorable Executive Directive 1975-6 compliance with quality reliability per- sions of the and intentional discrimination. the result of was small and formance afforded heavily upon most relied The evidence Significantly, Markets Urban businesses. report was the in this action the defendants poli- purchasing that state did not conclude study Ur- 1974 state-commissioned of a discriminatory, but rather cies were Unlimited, (Urban Mar- Inc. ban Markets agencies indicated that awards “[m]ost kets). “A Public Pro- report, entitled satisfactory upon the lowest based [were] Vendors,” Inventory Minority on curement bid.” state- prefaced with the rather dubious con- damaging to the defendants’ enterpris- Most “Minority-owned business ment: Michigan legislature was being tention that the synon- are often described es eradi- compelling interest to by report motivated ymous small business.”10 with past state discrimination 8,112 minority cate the effects busi- noted that there were de- Act 428 were it enacted Public in a small when Michigan, but that nesses interroga- responses plaintiffs’ contracts, only fendants’ four purchase sampling requested action. Plaintiffs con- tories state.11 The did with the business findings of identify the however, defendants to represented only the sampled, tracts 8,112 employed a propo- ployees, all businesses report no evidence for this offers 10. The 10,958 persons. may only be true most well sition. While it total businesses, the notion that the are small MBEs persuasive. synonymous There is not terms are are, agencies 12.Only data maintained 4 of doubt, of non-mi- a substantial number no Indeed, purchases one of from MBEs. businesses, which, nority size, because of their small "es- report’s was that the state recommendations effectively problems experience also collecting quanti- data on the a means of tablish questiona- competing This for state contracts. purchases ty, types, dollar amounts proposition, of the re- which much ble expends ven- which the State based, seriously analysis port's undermines admittedly kept fact that the state dors.” The validity reached Urban of the conclusions participation in state contracts on MBE no data Markets. attempt to seriously the defendants’ undermined incorporated rely "statistical evidence" on the small most MBEs were 11. As an indication that report as an indication Markets businesses, only into the Urban reported that Urban Markets 8,112 past 2,577 paid state discrimination. Michigan’s em- MBEs had each of the mi- of the discriminatory history and condi- nority groups favored in Public Act tions 1(a), (d), described in (e) above; responded defendants to each interrog- atory as follows: (i)increases in the number of business- (1) Upon information belief, and the Mi- qualified es compete for state con- chigan Legislature found that tracts will result in a cost benefit to the (a) there history had been a signifi- taxpayers. political, economic, cant and cultural dis- addition, In plaintiffs the directed the de- race, crimination upon based ethnic ori- fendants to identify documents supporting gin, and sex in States, the United includ- legislature’s the conclusion that the state ing Michigan; and had against discriminated minorities and (b) among the racial and ethnic minori- women in the award of state contracts. ties who have been the victims of such answer, their defendants, the other than Eskimos, discrimination are Hispanics, referring to the evidence above, discussed Orientals, (Native Indians Americans), again relied societal discrimination, Blacks; and referring generally to history “the (c) Females have been the victims of western world for the years.” sex; discrimination based upon Furthermore, the again state acknowl- (d) as a result of the discrimination edged that it did not maintain records con- 1(a) above, described in racial and ethnic cerning the number of MBEs which bid on minorities and females have been sub- state contracts and the number which were jected to economic disadvantages; and awarded state contracts. (e) among consequences the of the dis- reviewing After the record in its entirety crimination 1(a) described (d) as developed above, before court, the has district been an inability to compete court equal

on an concludes that competitive Michigan legisla- level for access little, ture had contracting if opportunities any, probative govern- evidence ment, including before it but that would not limited warrant a finding to such opportunities with the the State of Michigan State of Michigan; had discriminated against in awarding MBEs state contracts (f) purchase for the goods as a result of competitive services. At limita- best, imposed tions suggested evidence racial and ethnic minori- societal ties and females discrimination had because of the discrimi- afforded obstacle to aforesaid, nation development persons other MBEs in their business those categories enjoy relationship an with the artificial State of Michigan. unfair advantage in competitive pro- Consequently, relatively exist,13 few MBEs cess; and and those that do are generally small (g) the size and advantages resulting difficulty have per- competing for sons not subject to state contracts as a based result their size. upon racial or ethnic The evidence prove considerations or does not that the State gender those of competition of Michigan reduce for invidiously discriminated state contracts and thereby result racial and ethnic minorities in greater costs to the taxpayers for awarding state Accordingly, contracts. and services needed the State Mi- this court concludes that the state has not chigan; and supported its conclusion that it had a com-

(h) goals pelling establishment of and timeta-' in establishing the racial bles effecting procurement policies and ethnic classifications contained in Pub- was the most effective feasible means lic Act are, and those classifications available to remedy present therefore, effects constitutionally invalid.14 13. Berman support testified in of S.B. proof There is preference support no for minorities comprise general 13.73% popu- groups 428, i.e., listed Public persons Act Michigan, lation of but comprised only "black, MBEs oriental, eskimo, are hispanic, who or an 5.85% the businesses within the state. American Mich.Comp.Law Indian." upon gener- ac existent. Defendants’ reliance preference regard to

With Su Act al assertions of societal by Public discrimination are WBEs corded stringent a less employed satisfy has insufficient to their burden absent preme scrutiny for or level of of review some indication that the “members of standard classifications: gender gender based benefited the classification actu- par ally disadvantage establish that related to also suffered] Our decisions classi uphold Mississippi a statute that the classification.” seeking to Univ. ty for gen Women, of their on the basis 458 U.S. at 102 S.Ct. at 3338. fies individuals showing an carry burden presented der must Defendants no evidence that justification” “exeedingly persuasive disadvantage in compet- WBEs suffered a Feens Kirchberg v. the classification. ing Accordingly, for state contracts. Pub- 1195, 455, 461, 101 S.Ct. tra, 450 U.S. gender-based lic Act 428’s classifications (1981); Personnel 1199, 428 67 L.Ed.2d invalid.15 are also 442 Feeney, v. Mass. Administrator of reasons, foregoing For the this court 2282, 2293, 256, 273, 60 99 S.Ct. U.S. 428, Mich.Comp. concludes that Public Act is met (1979). The burden L.Ed.2d 870 seq., 450.771 Laws et is unconstitutional. § that the classifi by showing at least only Consequently, judgment of the district governmental “important cation serves court is REVERSED and the case is RE- discriminatory and that objectives entry judgment MANDED for favor “substantially re employed” are means plaintiffs accordance with this objec of those achievement lated to the opinion. Mutual Wengler Druggists v. tives.” 142, 150, Co., 446 U.S. Ins. LIVELY, dissenting. Judge, Chief 1545, 1540, 64 L.Ed.2d 107 major disagree I with both Because Hogan Mississippi Univ. Women for majority opinion, I must premises 724, 718, 73 respectfully dissent. omitted). (1982)(footnote Al- 1090 L.Ed.2d never ex- has though Court terms, “substantially defined these pressly I. important governmental to serve an related majority Wygant reads v. Jackson stringent regarded as a less interest” is Education, 476 U.S. 106 Board of “narrowly of review than

judicial standard (1986), as if it 90 L.Ed.2d 260 S.Ct. compelling governmen- serve a tailored to accepted previously stan changed all the Contrac- tal interest.” Associated Gen. validity of affirma judging dards for (describing Cal., 813 F.2d at tors of governments and programs of tive action classifi- scrutiny gender based level of a fair That is not governmental units. review”). “mid-level cations as Wy effect of purport or appraisal stringent standard less Even under this gant. review, in Public preferences the WBE it noted that itself the Court Wygant at- withstand constitutional Act 428 cannot to take race into necessary in some cases that the state of record tack since evidence account, difference in emphasized the is non- against women discriminated that 450.771(e). this court concludes plaintiffs’inter 15. Because In the answers § rogatories, support they "compelling" were that defendants admitted lacked a distinctions, “impor- many in each of of how MBEs and an "unaware” above ed state ful racial and ethnic minority groups and were award bid for gender support based dis- tant” interest to purpose finding "prior, contracts. A tinctions, this court in Public Act embodied of each discrimination members prong of the consti- the second does not address required minority groups” is be these [favored] i.e., examination, the means whether tutional permitted governments are state and local fore "substantially re- "narrowly tailored” and were alleged remedy the enact goal eradicat- of its to the achievement lated” ing embodying ethnic dis laws racial and ment of prior present discrimination. effects Wygant, n. 13. See 106S.Ct. at 1852 tinctions. 1361; Co., 822 F.2d at Associat also J.A. Croson ed Gen. Cal., F.2d at 934. Contractors consequences flowing program from hirees”). such with new black In cases involv- one in this case goals, as the involved and one hiring valid the burden to be requires layoffs, plan that as the in Wy- borne innocent individuals is diffused gant emphasis did. This was made to a among considerable extent society contrasting program set-aside generally. Though hiring goals may approved had Fullilove v. individuals, burden some innocent they Klutznick, U.S. simply impose do not the same kind of (1980), plan with the L.Ed.2d 902 under injury layoffs impose. Denial of a Wygant, require which consideration did employment future opportunity is not as layoffs: intrusive loss of existing job. an recognized, however, We have (footnotes omitted). 106 S.Ct. at 1850-51 remedy the effects of order to dis Michigan program is similar to the crimination, may necessary it be to take program federal MBE At Fullilove. part

race into account. As of this Na most, nonminority owned businesses will eradicating tion’s dedication racial dis required be to share the state’s contracts crimination, persons may innocent be businesses; owned no white called some to bear of the burden owned business will be removed from a remedy. effectuating “When previously awarded contract. I believe this properly remedy limited and tailored by case is controlled Fullilove Ohio discrimination, cure the effects of Keip, Contractors Ass’n v. 713 F.2d 167 ‘sharing such a of the burden’ inno (6th Cir.1983), rather by Wygant. than parties impermissible.” cent is not Id. The Court has been unable to 484, [Fullilove, 448 at 100 S.Ct. at U.S.] agree precise on the scrutiny level of re 2778, quoting Franks v. Bowman Trans quired considering when race conscious Co., 747, portation 424 U.S. 96 S.Ct. programs to assist minorities. While there 1251, (1976). 47 L.Ed.2d 444 In Fulli is a consensus that race pro conscious love, challenged required statute at grams demand an elevated level of scruti percent least 10 public of federal works ny, the Court has not defined that level. funds to be used contracts with minor This is from clear an examination of the ity-owned enterprises. business This re plurality opinions Regents from quirement was found to be within the University Bakke, 438 of California powers Congress part remedial be 265, 2733, U.S. 57 L.Ed.2d 750 cause the burden “actual shouldered — (1978), Paradise, to United States v. nonminority relatively light.” firms is U.S. —, 1053, 94 L.Ed.2d 203 448 U.S. at 100 S.Ct. at 2778. plurality In fact a of the Court in Significantly, none of the cases dis- Paradise, a subsequent case to Wygant, Here, layoffs. cussed above involved “yet noted it has to reach consensus on the contrast, the means chosen to achieve the appropriate analysis.” constitutional Id. purposes Board’s asserted of lay- that 107 S.Ct. at 1064. ing nonminority great- off teachers with Despite this uncertainty, pre- at least two seniority er in order to minority retain requisites constitutionally acceptable for a seniority. teachers with less We have program race conscious clearly are estab- previously expressed concern over the program lished. response The be in preferential must layoffs burden that compelling goal to a and it must be imposes parties. scheme on innocent See Stotts, narrowly goal. tailored to achieve Firefighters v. The 574- concedes, 578-579, majority must, [2585-2586, as it S.Ct. 2576 2587-2588], (1984); Michigan compelling State of 81 L.Ed.2d 483 has a see Weber, 9, eliminating gender also race supra n. discrimina- [Steelworkers v.] this page, U.S. ^[193] at S.Ct. tion from its procedures awarding pub- ^[2721] at 2730 [61 L.Ed.2d 480 (1979)] lic contracts. I believe the Michigan pro- (“The plan require discharge does not gram requirement also satisfies the second of white replacement workers and their narrowly in that it is tailored. Given the public Berman, Testimony matter contract- 4. of Norton L. subject involved— of a different Director of Expan- to conceive Office Economic is hard —it sion, Michigan Department Commerce, the state’s would achieve approach that concerning Bill way. In Senate 1461 and encour- goals in a less intrusive legitimate Michigan aging legislature to enact set-asides. Id. plan chosen my opinion the at 181-82. virtually excluded system that correct a “fits” the contractors

minority 5. The Di- Governor’s Executive any (1975), alternative creating better than situation rective 1975-4 a Task at n. Wygant, Participation See Force on Small Business means. meaning Purchasing. emphasized discusses State the Court Directive where tailored,” quotes minority “narrowly difficulty Profes- businesses and the they getting at have had “the classification into the main- Ely’s sor definition: stream of precision than business. Id. at 182. greater ‘fit’ with issue must any alternative means.” public hearings 6. Two of the Task

Force, expressed where views were con- cerning the difficulties of busi- II. nesses. Id. at 183. majority’s disagree con- I also Report 7. The Task Force’s Final did clusion that the State (March 1976), alia, recommending, inter that established develop material evidence goals partic- be established for the past discrimination or the the existence of ipation procurement. of MBEs in state program to increase need for a at 183. Id. participation. An examination Di- Governor’s Executive totally record refutes conclusion. (1976), stating rective 1976-4 that it is Michigan legis- that the district court found policy the executive branch’s to ensure following considered the evidence lature get portion that MBEs fair business adopting in finally P.A. 428 1981: before creating the state and the Small and with con- 1. An Executive Memorandum Minority Business Procurement Council. cerning The House Bill No. at 183. Id. help small businesses receive bill was to Report of the 9. The First Annual contracts; government MBEs considered (1977), noting that the commit- Council of a small to fall within the classification in first ment for MBEs was reached indicate Bill and Memorandum business. 183-84. year. Id. at plight of minorities. early concern Di- 10. The Governor’s Executive F.Supp. 178-79. (1975),directing Michi- 1975-6 rective by the state study A commissioned 2. Rights to, gan inter Department Civil explore procure- the state’s in 1974 to alia, non- standards to assure establish upon minori- and its effects policies ment contracting. in Id. discrimination (the Urban Markets Unlimited ties at 184. Report issued in 1974 Study). examined May Report of the 11. The opportunities that were procurement Rights, expressing Department of Civil businesses, minority conclud- available had progress limited that concern over great, ing opportunities were not that 1975-6. Id. been made under Directive purchasing agents expressed at 184. negative toward ven- attitudes Bill initi- Proposed House dors. Id. at 179-81. provided for March which ated introduced in 3. Three Senate bills later, set-asides, set- WBE MBE (1975), (Senate Bills 885 1975-77 asides. Id. at 184-85. (1977)). (1976), These bills ad- and 10 businesses, leg- adopted Bill 4335 House dressed set-asides for small introduced, it years islature after was designed to address the two but were also in Act at issue P.A. facing minority businesses. Id. and became problems concluded that The district court this case. at 181. this evidence was sufficient for Legis- “the showing islative prior discrimination is finding lature make a of past intentional improper, only not because it give fails to discrimination.” Id. at 187. This is a find- the deference that a federal court should fully supported of fact is give legislature’s to a state findings, but clearly record and erroneous. because the level findings which the majority would exact legislature from the majority’s conclusion that the evi- has not suggested required. dence in this at best heretofore been case “that societal discrimination had afforded the ob- The Supreme Court noted Fullilove development stacle to the of MBEs in their course, “Congress, of may legislate relationship business with the State of Mi- compiling without the kind of ap- ‘record’ chigan” support in has no the record. The propriate respect to judicial or admin- has determined that socie- istrative proceedings.” U.S. at tal discrimination of itself is not 100 S.Ct. at 2774. The Court determined justification sufficient for enactment of an that “Congress had abundant evidence plan. affirmative action Wygant, 106 S.Ct. from which it could that minority conclude at 1847. As the Court Bakke, noted it businesses have been denied par- effective “approved has never a classification that ticipation public contracting opportuni- persons aids perceived as members of rela- procurement ties by practices that perpetu- tively groups victimized at expense ated the prior effects of discrimination.” other innocent individuals the absence of 477-78, at Id. 100 S.Ct. at 2774. There is judicial, legislative, or administrative find- sufficient legislative evidence in the record ings of constitutional or statutory viola- Public Act support 428 to tions.” 438 at U.S. 98 S.Ct. at 2757. determination that procurement the state’s Societal discrimination is exemplified best practices perpetuate did prior the effects of in Wygant. The school board extended discrimination, resulting in an extremely preferential protection against layoffs to percentage small being contracts award- minority employees in order provide mi- ed to and woman owned business- nority students with minority role models. es. holding this was an justifica- insufficient tion, the Court noted there must be some As we stated Ohio Contractors Ass’n showing gov- Keip, 713 F.2d at 173: ernmental unit and that the plan must have The state has to remedy chosen purpose. remedial effects of its own discriminatory legislative record in clearly this case practices by program means of a which shows plan that the enacted the State of imposes relatively light burdens on the designed solely to aid majority group which position was in persons perceived as members of “relative- benefit practices. from those ly groups” victimized or to create “role (Emphasis original). Michigan did the models” for noted, minorities. As the Mi- thing same for the same reasons. chigan Legislature began in 1971 to review problem Finally, my opinion majority places of limited participation of mi- nority entirely too emphasis woman owned much businesses in the semantics. procurement state's district “significant” court’s use services. plan opposed adopted that was approximately “compelling” describing years nine later was the state’s immaterial, given culmination of studies, numerous hearings clearly proposals did compelling have a in- to rectify the Any situation. terest in acceptable eliminating discriminatory practic- understanding concept es from federalism its contracting procurement requires us to accord degree procedures. the same Although the district court re- deference to findings legisla- a state ferred to a “reasonableness” test in review- ture following years study and investi- by Michigan means chosen to deal gation give that we to findings of Con- interest, with the state’s actually testing gress. The majority’s rejection of leg- the MBE program the judge district ex- pressly analyzed all of the factors that the

plurality analyzed

applying the “narrowly tailored” standard

in Fullilove. F.Supp. at 188.

I affirm judgment would of the dis-

trict court. CO.,

In re ELLINGSEN MacLEAN OIL

INC., cases, and related Debtor. CREDITORS’

UNSECURED COMMIT-

TEE; Corporation, Mobil Oil

Plaintiffs-Appellants,

FIRST & NATIONAL BANK TRUST ESCANABA,

COMPANY OF Company,

Northern Trust Defendants-

Appellees.

No. 86-1452. Appeals,

United States Court of

Sixth Circuit.

Argued April 1987.

Decided Nov.

Rehearing and En Rehearing Banc 15,1988.

Denied Jan.

Case Details

Case Name: Michigan Road Builders Association, Inc. v. William G. Milliken

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Feb 23, 1988

Citation: 834 F.2d 583

Docket Number: 86-1239

Court Abbreviation: 6th Cir.