Concrete Works of Colorado, Inc. v. City and County of Denver, Colorado

2003-11-17

Headline: Denial lets Denver’s race-based contracting program stand, leaving the Tenth Circuit’s ruling upholding city set-asides in place and affecting competing contractors and minority firms.

Holding: The Court denied the petition for review, leaving the Tenth Circuit’s ruling that Denver demonstrated a compelling interest to use race-conscious contracting measures in place.

Real World Impact:

Leaves Denver’s race-based contracting goals in effect for now
Allows the city to continue disqualifying bids that fail minority participation goals
Signals possible weakening of strict judicial scrutiny for race-conscious programs

Topics: race-based contracting, affirmative action, public contracting, construction industry, court review standards

Summary

Background

A Denver city government has used race-conscious goals in public construction contracting since the 1970s and adopted a 1990 ordinance setting yearly goals for minority and women-owned firms. A private construction contractor challenged the city’s rules, and after a trial a federal district court criticized the city’s statistical evidence and rejected the program. The Tenth Circuit reversed, finding Denver had shown a compelling interest to remedy discrimination, and the contractor sought the Supreme Court’s review.

Reasoning

The central question was whether Denver proved specific, pervasive past discrimination that would justify favoring firms identified by race. Justice Scalia, writing in dissent from the denial of review, argued the Tenth Circuit accepted only weak inferences and flawed statistics instead of the tough proof required by earlier decisions. He said the city’s studies failed to measure which minority firms were actually qualified or to control for firm size and experience. He also criticized the appeals court for shifting burdens and for applying de novo review rather than giving deference to the trial court’s factual findings.

Real world impact

Because the Supreme Court declined to take the case, the Tenth Circuit’s decision remains in effect, so Denver’s set-aside scheme continues for now. Scalia warned that leaving this ruling unreviewed may signal a reduced willingness by courts to demand strict, specific proof before permitting race-conscious government programs. The denial did not resolve the legal standards nationwide; the question of how appeals courts should review such evidence remains unsettled.

Dissents or concurrances

Justice Scalia dissented from the Court’s refusal to hear the case and urged review to resolve a circuit split and to reaffirm strict scrutiny and the requirement that governments identify discrimination specifically.