1 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 t he 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 t he airport and other City

projects indicates a continuing pattern, practice and custom on the

part of the City to deny African American businesses, including1 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).

2 pla intiff'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

d istrict court dismissed the case, concluding that the ABCA d oes

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 Ri chmond v. Croson. 1 This reading of

Croson is in error. In C roson, the Supreme Court held that

e vidence 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 Croson3 See, Yatvin v. Madison Met. School District, 840 F.2d 412,

415 (7th Cir.1988); N AACP, Detro it 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);

Assoc i ated 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).

4 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

3 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

constitutiona l 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 A BCA'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 causeclaim 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); S cheue 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 t o plaintiff and take allegations contained therein as

true); M ann v. Adams Realty Inc., 556 F.2d 288, 293 (5 t h

Cir.1977).

4 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.