Concrete Works of Colorado, Inc. v. City and County of Denver, Colorado
The Supreme Court declined to hear a challenge to Denver's minority-business preference program in city contracting, leaving in place a Tenth Circuit ruling that had reversed a trial judge's finding that the city lacked adequate evidence of past discrimination.
Justice Scalia, joined by Chief Justice Rehnquist, dissented from the denial, warning that letting the Tenth Circuit's ruling stand signaled a weakening of the Court's earlier demand that governments prove real, specific discrimination before using race-based contracting preferences.
How it got here: A federal district court ruled against Denver's program after trial; the Tenth Circuit reversed; the contractor asked the Supreme Court to review, and the Court denied certiorari.
The Case in Depth
What happened
Denver had used racial and gender preferences in awarding city construction contracts since 1977, formalized in a 1990 ordinance setting participation goals for minority- and woman-owned firms. A contractor sued, arguing the city lacked adequate proof of past discrimination to justify treating bidders differently by race. A trial court agreed with the challenger, but the Tenth Circuit reversed, finding Denver had shown enough evidence to justify its program.
The question before the Court
Should the Supreme Court have taken up Denver's use of racial preferences in awarding city construction contracts?
Why it matters
Denver's minority- and woman-owned business preference program in city contracting remains in effect, and other cities in the Tenth Circuit's region can point to a more lenient appellate standard for justifying similar race-based preferences. Contractors challenging such programs elsewhere may face inconsistent standards depending on which appeals court hears their case.
What changes now
Because certiorari was denied, the Tenth Circuit's ruling upholding Denver's contracting preferences stands as final in that circuit, and Denver's program continues unchanged. The denial sets no binding precedent and does not resolve the circuit split over the standard of review for the 'strong basis in evidence' requirement, leaving that question open for a future case. No further proceedings occur in this case.
What this does not decide
A denial of certiorari is not a ruling on the merits and carries no precedential weight. The Court did not decide whether Denver's program is constitutional, did not resolve the circuit split over the standard of appellate review, and did not address whether Croson remains fully in force.
Concurrences and dissents
Dissent — Justice Scalia
“Coming on the heels of our decision last Term in Grutter v. Bollinger, 539 U. S. 306 (2003), the Court's decision to let this plain disregard of Croson stand invites speculation that that case has effectively been overruled.”Scalia warns that denying review suggests the Court's key precedent on race-based contracting has been quietly abandoned.
Justice Scalia, joined by the Chief Justice, argued the Court should have granted certiorari because the Tenth Circuit's ruling let Denver justify racial preferences with mere inference-based evidence rather than proof of specific, pervasive discrimination as Croson requires. He argued the panel flipped the burden of proof, accepted flawed statistical studies, and ignored a circuit split over the standard of review, and warned that denying review signaled the Court's retreat from strict scrutiny of race-based programs.
How the Court got there
The legal reasoning, step by step
- The Court did not issue a merits ruling; it simply denied the petition for certiorari, meaning the Tenth Circuit's decision remains the final word in that circuit without Supreme Court review.
- Justice Scalia's dissent argued that under Croson, a government defending racial preferences must show a 'strong basis in evidence' that it is remedying discrimination it has identified with specificity, not merely evidence from which discrimination could be inferred.
- The dissent contended the Tenth Circuit lowered Denver's burden by allowing an inference-based showing and simultaneously raised the challenger's burden to rebut that showing, inverting the framework Croson requires.
- The dissent also faulted Denver's statistical studies for failing to measure the availability of qualified, willing, and able minority firms and for not controlling for firm size and experience through regression analysis, as Croson's disparity standard requires.
- The dissent additionally identified a circuit split over whether appellate courts review the 'strong basis in evidence' question de novo (as the Tenth and three other circuits do) or for clear error (as the Eleventh Circuit does), and argued this unresolved split alone warranted review.
Doctrinal impact
Cases affected by this decision
Distinguishes Richmond v. J. A. Croson Co. (488 U. S. 469)
The dissent argues the Tenth Circuit's ruling departs from Croson's requirement to prove specific, pervasive discrimination.