United States Court of Appeals,
Fifth Circuit.
No. 94-50729.
AUSTIN BLACK CONTRACTORS ASSOCIATION, Plaintiff-Appellant,
v.
CITY OF AUSTIN, TEXAS, Defendant-Appellee.
March 21, 1996.
Appeal from the United States District Court for the Western
District of Texas.
Before WISDOM, GARWOOD, and JONES, Circuit Judges.
PER CURIAM:
Plaintiff-appellant, the Austin Black Contractors Association
("ABCA"), brought this action against the defendant-appellee, the
city of Austin, Texas ("City"), alleging racial discrimination in
the awarding of the city's construction contracts. The ABCA bases
its complaint on the results of a historical study commissioned by
the City that indicates minorities have been statistically
"under-utilized" on City construction projects.
The ABCA's complaint is brief, alleging that the City has
historically excluded African Americans and other minorities from
participation in construction projects because of their race, and
that the City continues to do so. It does not allege any specific
instance of recent or ongoing discrimination, but states that "the
findings of the study and the defendant's exclusion of African
American businesses from contracts on the airport and other City
projects indicates a continuing pattern, practice and custom on the
part of the City to deny African American businesses, including
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plaintiff's members, the right to enter into contracts with the
City because of their race." The ABCA requests relief in the form
of requiring the City to impose a ten percent construction spending
set-aside for African American contractors, and to create a twenty
million dollar trust to aid in financing and bond assistance for
African Americans.
The City moved to dismiss the ABCA's complaint under Federal
Rule of Civil Procedure 12(b)(6) for failure to state a cause of
action upon which relief could be granted. After a hearing, the
district court dismissed the case, concluding that the ABCA does
not have "a constitutional cause of action against the City for
failure to implement an affirmative action program." To the extent
that the ABCA's complaint alleges such a cause of action, we agree
with this ruling.
The ABCA bases its argument that a City is required to adopt
aggressive affirmative action programs on the United States Supreme
Court decision in City of Richmond v. Croson.1 This reading of
Croson is in error. In Croson, the Supreme Court held that
evidence of statistical disparities between the availability and
utilization of minority contractors in a city, combined with other
evidence of racial discrimination in that industry, may justify the
voluntary adoption of a race-based affirmative action program.2
The Croson court did not indicate that such programs may be
constitutionally mandated. This court will not now extend Croson
1
488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989).
2
Id. at 509-511, 109 S.Ct. at 730-731 (emphasis added).
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to create such a requirement. In making this ruling, we join the
numerous other circuits that have previously determined that the
Fourteenth Amendment does not require affirmative action.3
Because the ABCA has failed to plead a statutory or
constitutional basis for its claim of inadequate affirmative
action, we AFFIRM the dismissal of that portion of the plaintiff's
complaint.
It appears, however, that the district court incorrectly
construed the ABCA's complaint as alleging only a cause of action
for the City's failure to adopt specific affirmative action
programs, and therefore failed to address the ABCA's claim of
ongoing racial discrimination before dismissing the ABCA's
complaint. Although the ABCA's complaint is primarily devoted to
the affirmative action claim, it also contains an allegation that
the City continues to discriminate against ABCA members in awarding
construction contracts.
Although this second allegation is stated in a very
generalized manner, we find that it is sufficient to withstand the
liberal requirements of notice pleading under Federal Rule of Civil
Procedure 8(a).4 Because the ABCA successfully pleaded this cause
3
See, Yatvin v. Madison Met. School District, 840 F.2d 412,
415 (7th Cir.1988); NAACP, Detroit Branch v. Detroit Police
Officers Ass'n, 821 F.2d 328, 331 (6th Cir.1987); Croson v. City
of Richmond, 779 F.2d 181, 187 (4th Cir.1985), vacated on other
grounds, 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989);
Associated General Contractors of California v. San Francisco
Unified School District, 616 F.2d 1381 (9th Cir.) cert. denied, 449
U.S. 1061, 101 S.Ct. 783, 66 L.Ed.2d 603 (1980).
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See Conley v. Gibson, 355 U.S. 41; 78 S.Ct. 99, 2 L.Ed.2d 80
(1957) (a complaint should not be dismissed for failure to state a
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of action, the district court erred in dismissing the ABCA's entire
complaint. We VACATE the order to dismiss and REMAND this portion
of the case for further proceedings, including the opportunity for
the ABCA to amend its complaint.
claim unless it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him to
relief); Scheue v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d
90 (1974) (court is required to construe complaint in light most
favorable to plaintiff and take allegations contained therein as
true); Mann v. Adams Realty Inc., 556 F.2d 288, 293 (5th
Cir.1977).
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