# Appendix — South Florida Chapter of the Associated General Contractors of America, Inc. v. Metropolitan Dade County > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2834%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1984 - **Citation:** 469 U.S. 871 ## Text Office - Supreme Court, U.S. 9§-1872% | FiteD MAY 16 1984 No. ailinlee AS. IN THE Supreme Court of the United States OCTOBER TERM, 1983 SOUTH FLORIDA CHAPTER OF THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, INC., et al., Petitioners, Vv. METROPOLITAN DADE COUNTY, FLORIDA, et al., Respondents. APPENDIX TO PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT DAVID V. KORNREICH (Counsel of Record) GORDON D. ROGERS MULLER, MINTZ, KORNREICH, CALDWELL, CASEY, CROSLAND & BRAMNICK, P.A. Suite 1800 Two South Biscayne Blvd. Miami, Florida 33131 (305) 358-5500 Attorneys for Petitioners WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001 TABLE OF CONTENTS Page Appendix A South Florida Chapter of the Associated General Contractors of America, Inc., et al. v. Metropoli- tan Dade County, Florida, et al., 723 F.2d 846 no caneeiibasieomennes la Order Denying Suggestion for Rehearing En Banc SERIES eee keen nen 36a Order Granting Stay of Mandate Pending Petition for Writ of Certiorari (April 11, 1984) —............ 40a Appendix B South Florida Chapter of the Associated General Contractors of America, Inc., et al. v. Metropoli- tan Dade County, Florida, et al., 552 F.Supp. a ac ecietiinl 42a Declaratory Judgment and Permanent Injunction fe Se, ESS ea LN Oe 114a Index To Relevant Dade County Ordinances, Resolutions And Administrative Regulations Resolution No. R-1672-81 (November 3, | i ERS S SAAP EE Sse cn App. A—21a-23a Ordinance No. 82-67 (July 20, 1982) ...... App. A—23a-27a Regulations Governing Bid Procedures Under Ordinance No. 82-67 _................. App. A—27a-3la Resolution No. R-1350-82 (October 5, DI sidalcad icaicasisbat Nate cashed ulgicidbapnsailnbigueat App. A—31a-33a la APPENDIX A UNITED STATES COURT OF APPEALS ELEVENTH CIRCUIT No. 83-5001 SOUTH FLORIDA CHAPTER OF THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, INC., et al., Plaintiffs-A ppellees, Cross-Appellants, V. METROPOLITAN DADE COUNTY, FLORIDA, e¢ al., Defendants-Appellants, Cross-Appellees. Jan. 27, 1984 Appeals from the United States District Court for the Southern District of Florida Before KRAVITCH, HENDERSON and ANDERSON, Circuit Judges. KRAVITCH, Circuit Judge: This case involves the constitutionality of a Metropoli- tan Dade County ordinance and resolution granting pref- erential treatment to blacks in its contract bidding proc- ess. The ordinance allows the county to “set aside” con- tracts for bidding solely among black contractors! and 1 The term “black contractor” as used in the challenged ordinance and throughout our opinion denotes a contracting or subcontracting business entity that is at least 51 percentum owned by one or more Blacks, or, in the case of a publicly-owned business, at least 51 percentum of the 2a contains a “goals” provision by which the county can require that a certain percentage of a contract’s value be subcontracted to black contractors. The plaintiffs, non-profit corporations and trade associations, brought suit challenging the ordinance both facially and as ap- plied to the county construction contract for the Earling- ton Metrorail Station. The district court held that the “set aside” provision violated the Equal Protection Clause of the Fourteenth Amendment and granted a permanent injunction. The court, however, upheld the constitutionality of the “goals” provision. South Florida Chapter of the Asso- ciated General Contractors of america, Inc. v. Metropoli- tan Dade County, 552 F.Supp. 909 (S.D.Fla. 1982) {hereinafter cited as Metro Dade]. Both sides have ap- pealed from the decision. L The district court made extensive factual findings of the events leading up to the present controversy.2 The court found that the May 1980 disturbances in Liberty City had prompted the county to investigate the economic and social opportunities of blacks living in the area. The resulting studies concluded that race relations would con- tinue to deteriorate unless steps were taken to enhance the business opportunities of the black community. On November 3, 1981, the Dade County Commission in response to these findings adopted Resolution No. R-1672-81.* The resolution recognized that past discrimi- stock of which is owned by one or more Blacks; and whose management and daily business operations are controlled by one or more such individuals. Metropolitan Dade County, Fla., Ordinance No. 82-67 (July 20, 1982). 2 The district court’s findings are binding unless clearly erroneous. F.R.Civ.P. 52 (a). 8 Resolution No. R-1672-81 is set out in full in the Appendix. ALANS IL tly SEITE Nag E etn aPC D 3a nation had “to some degree” impaired the competitive position of black-owned businesses, resulting in a “statis- tically significant disparity” between the black popula- tion, the number of black businesses, and the number of county contracts awarded to black-owned enterprises. The resolution proceeded to announce a “policy of devel- oping programs and measures to alleviate the problem . ., including specific race conscious measures.” On July 20, 1982, the Dade County Commission adopted Ordinance No. 82-67‘ as a measure designed to implement its policy of fostering black business growth. The Commission premised the ordinance on a finding that: Dade County has a compelling interest in stimulat- ing the Black business community, a sector of the County sorely in need of economic stimulus but which, on the basis of past experience, is not ex- pected to benefit significantly in the absence of spe- cific race-conscious measures to increase its partic- ipation in County contracts. The ordinance required that all proposed county contracts be reviewed to determine whether race-conscious meas- ures would foster participation by black contractors and subcontractors. Bid credits, set-asides, minority partic- ipation goals and other devices were to be considered. The district court summarized the administrative proce- dures mandated by the ordinance as follows: a. Each department is charged with the respon- sibility of submitting its recommendations concern- ing Black set-asides and goals on each construction project under its jurisdiction; b. A three member contract review committee comprised of county officials is charged with the responsibility of reviewing the Departmental recom- * Ordinance No. 82-67 is set out in full in the Appendix. 4a mendations and submitting a final recommendation on Black set-asides and goals te the county commis- sion for final action; ce. Black subcontractors goals are to be based on “the greatest potential for Black subcontractor par- ticipation” and... “shall relate to the potential availability of Black-owned firms in the required field of expertise” ; d. Availability of Black subcontractors should in- clude “all Black-owned firms with places of business within the Dade County geographic area” ; e. Black set-asides shall be considered where there exists at least three Black prime contractors with the capabilities consistent with the contract require ments; f. A Black prime contractor can be under con- tract for up three set-asides within any one year period, but no more than one set-aside at a time; g. Prior to implementation of a Black set-aside, the county commission is to make findings that the Black set-aside is “in the best interest of the County in order to waive formal bid procedures”; and h. Bid procedures limiting bids to Black prime contractors would be implemented.° Metro Dade, 552 F.Supp. at 922. On July 21, 1982, the day following the passage of Ordinance No. 82-67, the county received and opened bid proposals for the Earlington Heights Station, part of a billion dollar rapid-rail transit system financed with fed- eral, state and local funds. A non-black prime contractor, Peter Kiewit Sons’ Company, submitted the lowest bid. The next lowest bid was tendered by Thacker Construc- tion Company, a black prime contractor. These bids were 5 The regulations are set out in full in the Appendix. 5a rejected for two reasons: (1) both exceeded the County Engineer’s estimate of what the project should cost, and (2) the amounts of the bids had become public, rendering it impossible to conduct competitive bid negotiations under applicable federal regulations. The County Man- ager then proposed, and the Commission agreed, that the Earlington Heights contract be reviewed under the newly enacted ordinance. After reviewing departmental recommendations, the Contract Review Committee proposed that the Commis- sion waive the use of formal competitive bids, setting aside the Earlington Heights contract for competitive bidding exclusively among black contractors. In accord- ance with the administrative procedure provided by the ordinance, the Contract Review Committee found that there were a sufficient number of licensed black contrac- tors in Dade County that possessed the requisite financial and technical capabilities to ensure competition for the contract. Additionally, the Committee suggested the in- clusion of a subcontractor goal requiring that fifty per- cent of the contract’s dollar value be awarded to black subcontractors. When combined with the general require- ment that the prime contractor personally perform twenty-five percent of the contract, this meant that seventy-five percent of the Earlington Heights contract was being set-aside solely for black contractors. On October 5, 1982, the Dade County Commission passed Resolution No. R-1350-82 * adopting the Commit- tee’s recommendations. The County issued notice that the contract was open for bidding subject to the one hundred percent set-aside and the fifty percent subcontractor goal. The closing date for submission and the opening of bids was set for November 17, 1982. The plaintiff-appellees filed a complaint in the Southern District of Florida on November 12, 1982, seeking declar- * Resolution No. R-1350-82 is set out in full in the Appendix. 6a atory and injunctive relief. Jurisdiction was premised upon 28 U.S.C. § 1348 as an action seeking relief pursu- ant to 42 U.S.C. §§ 1981 and 1983 and 28 U.S.C. §§ 2201 and 2202. Two related state-law claims were asserted under the district court’s pendent asserted under the dis- trict court’s pendent jurisdiction. On November 16, 1982, after both sides presented evidence at a hearing, the dis- trict court granted the plaintiffs’ motion for a temporary restraining order. On December 16, 1982, the court is- sued its memorandum opinion, declaring the one hundred percent set-aside unconstitutional, but upholding the use of the fifty percent subcontractor goal. Il. Because resolution of appellees’ pendent claims might render discussion of the federal constitutional claims un- necessary, we address those claims first. Hagans v. Le- vine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974). The plaintiff-appellees first contend that the County’s preferential treatment policy violates the Dade County Home Rule Charter. The district court concluded that the Commission, pursuant to section 4.03(D) of the Charter, may waive competitive bidding when it deter- mines waiver to be in the County’s best interests. Metro Dade, 552 ¥.Supp. at 927-28. We agree with this con- clusion and discuss the relevant Charter provisions more completely infra Slip op. at 1406-1407, at —-—. Plaintiff-appellees also argue that the challenged poli- cies contravene the Florida Constitution’s dve process and equal protection guarantees. The Florida courts have held that these provisions confer the same protec- tion as their federal counterparts. See Florida Canners Association v. Department of Citrus, 371 So.2d 503, 513 (Fla.2d Dist.Ct.App.1979), aff'd, 406 So.2d 1079 (Fla. 1981); Florida Real Estate Commission v. McGregor, 336 So.2d 1156 (Fla.1976). Determination of this pend- ent claim, therefore, is necessarily dependent upon the disposition of the federal constitutional issue. 7a III. The United States Supreme Court first directly con- fronted the constitutionality of affirmative action plans in Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2738, 57 L.Ed.2d 750 (1978). Bakke challenged an admissions program instituted by the Uni- versity of California at Davis Medical School, whereby sixteen of the one hundred available places in the enter- ing class were set aside solely for minority applicants. He contended that the program violated both Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment. No clear consensus emerged from the Court’s decision. Five justices held that the strict racial quota was invalic , but only Justice Powell, utilizing a strict scrutiny stand- arc of review, reached the decision on constitutional grounds. Justice Stevens, joined by the Chief Justice and Justices Stewart and Rehnquist, concurred in holding the program invalid, but did so on the basis of Title VI, not deciding the constitutional issue. Justices Brennan, White, Marshall and Blackmun, on the other hand, agreed with Justice Powell that Title VI was implicated only if the Equal Protection Clause was also violated, but, rely- ing on an intermediate level of scrutiny, would have up- held the program’s validity as substantial related to an important governmental interest. The Court next addressed the issue in the context of a congressional affirmative action program for federal funding of public works projects. Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980). The Fullilove Court upheld a statute that required local governments receiving funds under a federal public works program to use 10% of the funds for the procure- ment of services or supplies from statutorily defined minority owned and controlled businesses. Because Fulli- love addresses the equal protection issue in the context of government construction contracts and funding, it is the 8a most relevant case to our constitutional inquiry. See Ohio Contractors Ass’n v. Keip, 718 F.2d 167, 170 (6th Cir. 1983). As in Bakke, the Court in Fullilove did not produce a majority opinion, with three different views emerging from those Justices voting to uphold the statute. Chief Justice Burger’s opinion, in which Justices Powell and White concurred,’ declined to adopt either a strict scru- tiny or intermediate scrutiny standard. Instead of artic- ulating a broad rule of law, the Chief Justice’s opinion concentrated on “the context presented” in determining whether the statute’s objective was within Congress’ power and, if so, whether the means used was “narrowly tailored to the achievement of [Congress’] goal.” 448 U.S. at 473, 480, 100 S.Ct. at 2772, 2775. The Chief Justice also broadly outlined those aspects that a review- ing court should consider when evaluating such pro- grams: For its part, the Congress must proceed only with programs narrowly tailored to achieve its objectives, subject to continuing evaluation and reassessment; administration of the programs must be vigilant and flexible; and, when such a program comes under judicial review, courts must be satisfied that the leg- islative objectives and projected administration give reasonable assurance that the program will function within constitutional limitations. 448 U.S. at 490, 100 S.Ct. at 2871. 7 The district court referred to the Chief Justice’s opinion as the “plurality opinion” in Fullilove. Metro Dade, 552 F.Supp. at 931. Two justices also concurred in Justice Marshall’s opinion, however, meaning that neither the Chief Justice nor Justice Marshall’s opinion garnered the support of a plurality. Thus, to the extent that the term “plurality opinion” connotes that an opinion com- mands more support than other opinions in the case, neither Chief Justice Burger nor Justice Marshall’s opinion qualifies. 9a Justice Powell’s concurrence reiterated his views in Bakke that strict scrutiny was the proper standard of review. The strict scrutiny test would require a finding that the racial classification was “a necessary means of advancing a compelling governmental interest.” 448 U.S. at 496, 100 S.Ct. at 2783. This approach requires both specific findings of past discrimination and a choice of remedies “equitable and reasonably necessary to the re- dress of identified discrimination.” Jd. at 498, 510, 100 S.Ct. at 2785, 2791. Justice Powell also outlined five fac- tors to consider in determining whether the strict scru- tiny test is satisfied: (1) the efficacy of alternative rem- edies; (2) the planned duration of the remedy; (3) the relationship between the number of minority workers to be employed and the percentage of minority group mem- bers in the work force; (4) the availability of waiver provisions; and (5) the effect of the remedy on third parties. Id. at 510, 514, 100 S.Ct. at 2791, 2793. Both Chief Justice Burger and Justice Powell’s opin- ions stressed the fact that the statute in Fullilove was passed by Congress and should therefore be judged with deference to Congress’ broad powers: Here we deal... not with the limited remedial powers of a federal court, for example, but with the broad remedial powers of Congress. It is funda- rental that in no organ of government does there repose a more comprehensive remedial power than in the Congress, expressly charged by the Constitution with competence and authority to enforce equal pro- tection guarantees. Id. at 488, 100 S.Ct. at 2777; see also id. at 515 n.14, 100 S. Ct. at 2794 n.14 (Poweil, J., concurring). Their em- phasis on the fact that the Court was reviewing a Con- gressional statute suggests that constitutionally accept- able means of redessing past discrimination vary with the powers of the government body enacting the legisla- tion. 10a Justice Marshall in his concurrence, joined by Justices Brennan and Blackmun, reaffirmed his view in Bakke that an intermediate standard of review was necessary, requiring that the use of benign racial classifications be “substantially related” to “an important and articulated” government purpose. Jd. Justice Marshall believed that such an approach would guard against possible misuse or stigmatization while still allowing sufficient flexibility to redress past discrimination. In light of the diversity of views on the Supreme Court, determining what “test” will eventually emerge from the Court is highly speculative. The district court, based upon a review of federal court cases following Bakke and Fullilove, concluded that strict scrutiny was the proper standard. We rely instead on what we perceive as the common concerns to the various views expressed in Bakke and Fullilove: (1) that the governmental body have the authority to pass such legislation; (2) that adequate findings have been made to ensure that the governmental body is remedying the present effects of past discrimi- nation rather than advancing one racial or ethnic group’s interests over another; and (3) that the use of such clas- sification extend no further than the established need of remedying the effects of past discrimination. Legislation employing benign racial preferences, therefore, must in- corporate sufficient safeguards to allow a reviewing court to conclude that the program will be neither utilized to an extent nor continued in duration beyond the point needed to redress the effects of the past discrimination. This approach is most closely akin to that set out in Chief Justice Burger’s opinion in Fullilove. Without adopting a formal “test,” it attempts to balance the legi- timate objective of redressing past discrimination with the concerns that the chosen means be “narrowly tailored” to the legislative goals so as to not unfairly impinge upon the rights of third parties. Furthermore, the program must be structured in such a way that it is lla subject to reassessment and will be implemented in a manner that is flexible enough to account for changing needs and circumstances. 448 U.S. at 490, 100 S.Ct. at 2780. IV. A. Pursuant to the above approach, we must first de- termine whether Metropolitan Dade County was a competent legislative body to adopt remedial measures designed to eliminate past discrimination. In Fullilove, both Chief Justice Burger and Justice Powell empha- sized the “unique” role accorded Congress in dealing with past discrimination, 448 U.S. at 483, 500, 100 S.Ct. at 2777, 2786. We agree with the Sixth Circuit, however, that the references in Fullilove to Congress’ power were not intended to imply that governmental bodies other than Congress may not act to remedy past discrimina- tion, but were only emphasizing the “unequaled” power of Congress to act under its specific powers granted by the Fourteenth Amendment. Ohio Contractors, 713 F.2d at 172. Thus, although the scope of Congress’ power to remedy past discrimination may be greater than that of the states, state legislative bodies are not without au- thority to ensure equal protection to persons within their jurisdictions. Id. Whether the Metropolitan Dade County Commission as a political subdivision of the State of Florida had the power to enact the ordinance is a question of state law. Dade County operates pursuant to its Home Rule Charter, which specifically grants the county the power to waive competitive bidding when such waiver is in the county’s best interests: Contracts for public improvements and purchases of supplies, materials, and services other than profes- sional shall be made whenever practical on the basis of specifications and competitive bids. Formal sealed 12a bids shall be secured for all such contracts and pur- chases when the transaction involves more than the minimum amount established by the Board of County Commissioners by ordinance. The transaction shall be evidenced by written contract submitted and ap- proved by the Board. The Board, upon written recommendation of the Manager, may by resolution adopted by two thirds vote of the members present, waive competitive bidding when it finds this to be in the best interest of the county. Metropolitan Dade County, Fla., Home Rule Charter § 4.03(D) (as amended through October 5, 1978). When this provision is coupled with the other broad powers granted by the Home Charter, see Metro Dade, 552 F. Supp. at 934, we agree with the district court’s conclu- sion that the Commission was competent as a matter of state law to make findings of past discrimination and to enact remedial legislation. Jd. at 927, 934. B. Having found that the Commission had the authority to enact the ordinance, we must now determine if the Commission made adequate findings to ensure that the county was acting to remedy the effects of past discrimi- nation rather than advancing one group’s interests over another based on a perceived need not founded in fact. We agree with the district court that the Commission made sufficient legislative findings to justify race- conscious remedies. The court found that the Commission’s actions were based on “reliable, substantial information complied by independent investigations.” Metro Dade, 552 F.Supp. at 917 (Finding #17). These investigations revealed that past discriminatory practices had impeded the de- velopment of black businesses, resulting in an economic disparity between blacks and other groups that had cre- ated unrest in the black community. Id. at 916 (Finding 13a #16). Moreover, the court found from the evidence presented that although the present county government had not engaged in discriminatory practices, there had been “identified discrimination against Dade County black contractors at some point prior to the county’s present affirmative action program.” Jd. at 925-26 (Find- ing #41) (emphasis in original). The Commission in passing both Resolution No. R-1672-81 and Ordinance No. 82-67 relied on the above legislative findings as the premise for their actions, and these findings amply estab- ‘lish a governmental interest justifying the county’s measures designed to remedy past discrimination. See Ohio Contractors, 713 F.2d at 170-171. C. We must next consider whether the Dade County ordinance facially incorporates sufficient safeguards to ensure that it is narrowly tailored to its legitimate ob- jective of redressing past discrimination. After a care- ful review of the legislative provisions, we find that ade- quate safeguards exist to uphold the ordinance’s consti- tutionality. Before a set-aside or subcontractor goal is approved for a county construction contract, it must pass through three levels of administrative review. First, the county department must suggest through the County Manager which, if any, race-conscious measures are appropriate for the project being reviewed. Regs. 1.02 & 2.03. The suggestions are made on the basis of the availability of black contractors and the goals of the department. Reg. 1.02. Suggested actions may include the use of a set- aside, subcontractor goals, bid credits or no race-conscious measures at all. Reg. 1.04. Next, the department’s suggestions are reviewed by a three member Contract Review Committee. Regs. 2.01 & 2.02. The Committee formulates a recommendation on the advisability of the inclusion of race-conscious meas- 14a ures for the construction contract in question prior to the preparation of contract specifications. Regs. 2.04 & 2.06. This recommendation is then forwarded to the Board of County Commissioners. Reg. 2.06. Finally, the Board conducts its review of the pro- posed measures, acting upon the Committee’s recommen- dation and giving advice on how to proceed. Reg. 2.06. In the case of a set-aside, the Board must make findings that the set-aside would be in the best interests of the county before waiving formal bid procedures. Regs. 2.07 & 5.03. The ordinance and regulations also set out criteria to guide the reviewing bodies as to whether set-asides and goals are appropriate. A set-aside may be used only upon findings that at least three certified black prime contractors are available and that the set-aside would be in the best interests of the county. Ord. 10-38(d) (2) ; Reg. 5.01. Subcontractor goals must be based upon esti- mates of the project’s subcontracting opportunities and the availability of black subcontractors with the neces- sary expertise. Ord. 10-38(d) (1) ; Reg. 4.02. In addition to the three-tiered review of each con- struction contract where race-conscious remedies are pro- posed, the entire program is also subject to periodic review and assessment. The Board must annually re- assess the continuing desirability and viability of the program. Ord. § 10-38(e). This reassessment is in part based upon an annual report by the County Manager reporting the percentage of the value of county construc- tion contracts awarded that year to black contractors and subcontractors. Ord. § 10-88(e). The County Manager is also charged with the duty of continually monitoring the program’s use and periodically reporting its findings. Resol. § 3. We find that these extensive review provisions provide adequate assurances that the county’s program will not 15a be used to an extent nor continue in duration beyond the point necessary to redress the effects of past dis- crimination. Although no definite expiration date is speci- fied, the Board is obligated to review the program annually to assess whether it should be continued or modified, and such a review adequately guarantees that the program will not be continued beyond its demon- strated need. See Ohio Contractors, 713 F.2d at 175 (no given expiration date required).* Likewise, although no target figure for the program’s overall use is specified, adequate review mechanisms exist to ensure that the program will not be misused. Each contract where set- asides or goals are to be used must be approved at three different levels of the county government, and the entire program is subject to periodic monitoring and reassess- ment by the Board and County Manager. Our conclusions on the adequacy of the program’s safe- guards are premised on the understanding that the re- view process, both for individual contracts and the entire program, will be conducted in a thorough and substantive manner. If the process is carried out in a conclusory fashion or extended beyond its legitimate purpose of redressing the effects of past discrimination, the plaintiffs may of course renew their challenge to the constitution- 8 A durational limit is one of the five factors that Justice Powell identified for assessing a program’s constitutionality. 488 U.S. at 510, 512, 100 S.Ct. at 2791, 2792 (Powell, J. concurring). In Ohio Contractors, supra, the Sixth Circuit held that the lack of a dura- tional limit was not “fatal” in light of the Ohio legislature’s recog- nition of the need for future reassessment and reevaluation. 713 F.2d at 175. The dissent argued that the lack of a durational limit combined with what it believed was a lack of sufficient findings of past discrimination led to the statute “present[ing] a real danger of fostering a dependency upon favoritism, which is inimical ... to the commands of the Equal Protection Clause.” 713 F.2d at 176 (Engel, T., dissenting). Here, we have adequate legislative findings, supra, which ensure that Dade County is not merely “fostering a dependency upon favoritism,” as well as an annual reassessment by the Board of the continued need for the program. 16a ality of the county’s program. We decline to hold the ordinance facially unconstitutional, however, merely on the speculation that the county will not vigorously under- take implemenation of the review procedure. ¥. Having found that the ordinance is constitutionally acceptable, we must still determine whether the program was constitutionally applied to the Earlington Heights Station. After reviewing the record, we conclude that the set-aside and subcontractor goal were properly adopted by the county and were appropriately measures for the project. After the formal bidding on the Earlington Heights contract was rejected,® the County Manager recommended that the contract be subjected to the newly enacted pro- cedures of Ordinance No. 82-67. Metro Dade, 552 F.Supp. at 923. The Contract Review Committee, in accordance with the requisite administrative procedures, determined that a sufficient number of county black contractors were available with the requisite capability of serving as the prime contractor and recommended that bidding be set- aside. Id. The Committee also recommended a fifty per- cent subcontractor goal based on the availability of quali- fied black subcontractors and the requirements of the project. Id. The Commission adopted the Commitiee’s recommenda- tions, finding: as a matter of fact that the use of both a set-aside and a goal on this contract will contribute towards eliminating the marked statistical disparity .. . between the percentage of overall Black business participation in County contracts and the percentage of Dade County’s population which is Black. ® The bids were rejected because they were substantially higher than the County’s estimates and because the amount of the bids had become public. Supra Slip op. at 1403 at ——. ee - — 17a Resolution No. R-1350-82. In accordance with the ordi- nance’s regulations, the Commission formally found the set-aside to be in the best interests of the county and waived formal bidding. The Commission also incorpo- rated the prior legislative findings of Resolution R-1672- 81, which had found both evidence of past discrimina- tion and a need for fostering increased participation by the black business community. The set-aside and subcontractor goal for the Earling- ton Heights Station were thus properly adopted by the Commission pursuant to the ordinance and its regula- tions.*° The Contract Committee reviewed the availability of qualified black contractors and the demands of the project before making its recommendations, and the Board found the recommendations to be necessary to eliminating the vestiges of past discrimination in the awarding of county construction contracts. Moreover, we find that the 100% set-aside and 50% subcontractor goal were appropriate, narrowly tailored measures to achieve the legislative objective. In so con- cluding, we find that the district court erred on several grounds in striking down the set-aside. First, when discussing the set-aside’s relationship to the percentage of black contractors and its impact on third parties," the district court rejected the county’s 10 The measures, of course, were not proposed prior to the com- pletion of contract specifications (Regulation 1.02), as the contract had already been bid upon. We do not find, however, that in the context of the proceedings concerning the Earlington Heights Sta- tion that this omission in any way affected the validity of the set- aside or goal. 11 We rely on Justice Powell’s indicia for this part of our dis- cussion not because we are adopting the “strict scrutiny” test, but because the district court relied upon them in its opinion. More- over, these factors serve as a helpful guide in determining whether a statute satisfies the Equal Protection Clause, regardless of which standard of review is used. 18a argument that, viewed within the whole context of county procurement, the set-aside constituted only .6% of all county contracts over a ten year period: “It is the pro- priety of the 100% set-aside of the Earlington Heights Station that is for the determination of the Court. Noth- ing else.” 552 F.Supp. at 937. Yet, when reviewing the 50% subcontractor goal, the court in essence undertook a “totality” review: “The record shows that this contract is but one out of twenty. It is located in the Black com- munity and is a visible symbol of Black participation in the Metrorail system and county construction contracting in general.” Jd. at 941. Although we do not agree that a ten year time frame is the proper reference point, a “totality” review is an appropriate means of ascertaining whether a program or its application is narrowly drawn.” Here, the estimated cost of approximately $6 million for the Earlington Heights Station, id. at 923, constitutes less than one per- cent of the county’s annual expenditures of $620 million on contracts, id. at 917, and just over one percent of the approximately $581 million spent up to September 30, 1982 on the Dade County Metro rail system itself,’* id. Considering that blacks constitute over seventeen percent 12 All three opinions in Fullilove voting to uphold the statute compared the 10% figure in the statute to the total expenditures by the United States government on construction contracts. 448 U.S. 484 n. 72, 100 S.Ct. 2778 n. 72 (Burger, C.J.) ; 448 U.S. 514- 515, 100 S.Ct. 2793 (Powell, J. concurring) ; 448 U.S. 521, 100 S.Ct. 2796 (Marshall, J. concurring). See also Ohio Contractors, 713 F.2d at 173. The Court’s reliance on all funds expended on con- struction work in the United States as its reference point is an even broader one than we rely upon here. 13 The total cost of the Metrorail system is estimated at approxi- mately one billion dollars, 552 F.Supp. at 917 (Finding #20), of which the Earlington Heights Station costs would constitute only 6%. 19a of Dade County’s population, yet less than one percent of Dade county contractors are black, id. at 926, the effect of the set-aside and the subcontractor goal is not dis- proportionate to either the number of blacks and black contractors residing in the county or to the goal of in- creasing black business participation in order to redress past discrimination.* Likewise, considering the small percentage of overall construction contracts affected, we do not find that the set-aside impacts unfairly on third parties.° Cf. Fullilove, 448 U.S. 484 n. 72, 100 S.Ct. at 2778 n. 72; 448 U.S. at 514-15, 100 S.Ct. at 2793 (Powell, J., concurring). Seeond, the district court used an abuse of discretion standard to determine whether the 50% figure was rea- sonable, but not for the 100% set aside. 542 F.Supp. at 936, 939. We find this inconsistent, as the effect of the 50% figure, although designated a “goals” provision, is to set-aside 50% of the contract’s value for black con- tractors. We also question the use of an abuse of discre- tion standard in judging whether a percentage goal or set-aside is reasonable. Although Justice Powell did speak in his Fullilove concurrence of the set-aside percentage being within Congress’ “discretion,” he also noted that a higher level of scrutiny may be necessary for legislation passed by governmental bodies other than Congress. 448 U.S. at 515 n. 14, 100 S.Ct. at 2794 n. 14. We rely on the higher review standard of whether the percentages chosen, either as a set-aside or goal, are narrowly tailored to the legislative objective; we find that they are nar- rowly tailored here. 14 As of August 31, 1982, only 7% of the Metrorail construction was being performed by black contractors and subcontractors. 552 F.Supp. at 927 (Finding #21). 15 We also note, as did the Sixth Circuit, that non-minority con- tractors may participate by cwning up to 49% of a minority estab- lishment. See, supra note 1; Ohio Contractors, 713 F.2d at 174. 20a Finally, we cannot agree with the district court that the set-aside was impermissible in light of alternative remedies or because it lacked an adequate waiver provi- sion. The county was not required to choose the least restrictive remedy available, see Fullilove, 448 U.S. at 508, 100 S.Ct. at 2790 (Powell, J., concurring), and, as discussed above, the set-aside was chosen only after care- ful consideration of alternative methods and a formal finding by the Board that the set-aside was necessary in this case to redress the effects of past discrimination. Similarly, although the ordinance lacks a formal waiver provision, the set-aside was not approved until after the county had determined both that it would be in its best interests and that enough black contractors were avail- able. These determinations adequately provided the same safeguard as a formal waiver provision, which would protect against the potentially unfair effect “if [the set- aside] were applied rigidly in areas where minority group members constitute a small percentage of the popula- tion.” Fullilove, 448 U.S. at 514, 100 S.Ct. at 2793 (Powell, J., concurring). Vi. This case has raised one of the most troublesome ques- tions in the law: how to balance the legitimate goal of redressing past discrimination with concerns that re- medial legislation will unfairly infringe on the rights of third parties. Here, we find that Metropolitan Dade County has kept within the restrictions of the Equal Protection Clause in enacting the challenged ordinance, and thus uphold its constitutionality both facially and as applied to the Earlington Heights Station. The district court’s judgment is REVERSED IN PART and AFFIRMED IN PART. 2la APPENDIX Resolution No. R-1672-81 WHEREAS, it has consistently been the policy of this Board to foster economic growth and business opportuni- ties for its population and ty promote the development of local businesses; and WHEREAS, this Board believes that the favorable economic status and future growth prospects of Dade County are integrally linked to the economic and social conditions of the County’s Black communities, residents and businesses; and WHEREAS, this Board established the Black Business Participation .Task Foree and charged that Task Force with, among other things, investigating and assessing the present extent of Black business activity within the County generally and specifically in relation to doing business with the County; and WHEREAS, this Board hereby adopts the findings and conclusions of the Task Force; and WHEREAS, that Task Force found a statistically sig- nificant disparity between the County’s Black population and both the number of Black businesses within the County and those receiving County contracts; and WHEREAS, this finding of the Task Force that Blacks have not proportionately shared in Dade County’s eco- nomic development is in accordance with the findings and conclusions set forth in Black Owned Businesses in Metro- politan Miami, a Statistical Analysis of U.S. Census Data, prepared by Tony E. Crapp, Sr., Director, Business Development. Division, Department of Trade and Com- merce Development, City of Miami (December, 1980) ; An Economic Adjustment Plan for the Civil Disturbance Areas of the City of Miami and Dade County, prepared by Janus Associates (May, 1981) ; and the Report of the 222 Governor’s Dade County Citizens Committee (Octcber 80, 1980) ; copies of which reports are appended hereto, and the findings and conclusions of which are hereby adopted by this Board; and WHEREAS, these reports have found that the gross economic disparity between the Black community and the other communities in Dade County has greatly exacer- bated the frustrations of the Black community, which frustrations resulted in the May, 1980 riots and loom as sources of continuing racial and ethnic tensions; and WHEREAS, this Board recognizes the reality that past discriminatory practices have, to some degree, ad- versely affected our present economic system and have impaired the competitive position of businesses owned and controiled by Blacks so as to result in this dispro- portionately small amount of Black businesses, and WHEREAS, the causes of this disparity are perceived by this Board as involving the long standing existence and maintenance of barriers impairing access by Black enterprises to contracting opportunities and not as relat- ing to the lack of capable and qualified Black enterprises ready and willing to work; and WHEREAS, Dade County greatly impacts the local economy and business development through its spending of revenue for various County projects and other needs; and WHEREAS, Dade County has a compelling interest in stimulating the Black business community, a sector of the community sorely in need of economic stimulus but which, on the basis of past experience, is not expected to benefit significantly in the absence of specific measures to increase its participation in County business; and WHEREAS, this County has a compelling interest in promoting a sense of economic equality for all residents of the County; and 23a, WHEREAS, this Board believes that in order to effec- tively combat the unemployment and lack of economic participation of the Black community, the Black popula- tion must be provided with the opportunity of owning and developing their own businesses, NOW, THEREFORE, BE IT RESOLVED BY THE BOARD QF COUNTY COMMISSIONERS OF DADE COUNTY, FLORIDA: Section 1. This Board hereby advupts the policy of de veloping programs and measures to alleviate the problem of lack of participation of Blacks in the County’s eco- nomic life and to stimulate the local Black economy, in- cluding specific race conscious measures. Section 2. Any program or procedure established pur- suant to Section 1 above, shall continue until its objec- tives are met and must maintain sufficient flexibility to be able to achieve its purpose while still remaining viable in terms of the needs of the County to transact its business. Section 3. The County Manager shall monitor such programs and present periodic reports to the Board as to their efficacy and viability. ORDINANCE NO. 82-67: WHEREAS, this Board has previously mace the legis- lative finding in Resolution No. R-1672-81, adopted No- vember 3, 1981, that Blacks have not proportionately shared in Dade County’s economic development and has initiated a policy to promote increased participation of Black-owned businesses in County contracts; and WHEREAS, such findings and the bases therefor as contained in said Resolution No. R-1672-81, a copy of which is attached hereto, are hereby adopted as the legislative findings on which this Ordinance is based; and 24a WHEREAS, the above findings are in accordance with the findings and conclusions of the June 1982 report of the United States Commission on Civil Rights entitled, “Confronting Racial Isolation in Miami’, a copy of which is appended hereto; and WHEREAS, the government in Metropolitan Dade County greatly impacts the local economy and business development through its spending of revenue for various County projects and other needs; and WHEREAS, Dade County has a compelling interest in stimulating the Black business community, a sector of the County sorely in need of economic stimulus but which, on the basis of past experience, is not expected to benefit significantly in the absence of specific race-conscious measures to increase its participation in County con- tracts, NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF DADE COUNTY, FLORIDA: Section 1. Article II of Chapter 10 of the Code of Metropolitan Dade County, Florida, is amended by add- ing the following new section thereto: See. 10-38. Procedure to increase participation of Black contractors and subcontractors in county contracts. (a) The foregoing recitations are hereby incorpo- rated and adopted herein and made a part of this Ordinance. (b) Except where federal or state law or regulations mandate to the contrary, the provisions of this Sec- tion shall be applicable to all construction contracts funded in whole or in part by county funds. (c) (1) “Black contractor and subcontractor” means a contracting or subcontracting business entity which is owned and controlled by one or more Blacks and has established a place of business in Dade County. 25a (2) “Owned and controlled” means a business which is at least 51 percentum owned by one or more Blacks, or, in the case of a publicly-cwned business, at least 51 percentum of the stock of which is owned by one or more Blacks; and whose management and daily business operations are controlled by one or more such individuals. (3) “Black” means a person who is a citizen or lawful permanent resident of the United States and who has origins in any of the Black racial groups of Africa. (d) The County Manager shall establish an ad- ministrative procedure for the review of each pro- posed County construction contract to determine whether the inclusion of race-conscious measures in the bid specifications will foster participation of qualified Black contractors and subcontractors in the contract work. Such race-conscious measures may include goals for Black contractor and subcontractor participation and set-asides. (1) Goals. When utilized, goals shall be based on estimates made prior to bid advertisement of the quantity and type of subcontracting opportunities provided by the project to be constructed and on the availability and capability of Black contractors and subcontractors to do such work. When goals are utilized, the invitation for bid and bid documents shall require the apparent lower and qualified bidder prior to bid award to meet the goal or demonstrate that he made every reasonable effort to meet the goal and notwithstanding such effort were unable to do so. In the alternative, the bid documents may re- quire such demonstration regarding the goal or ef- forts to meet it to be included by all bidders as part of their bid submission. The steps required to demon- strate every reasonable effort shall be specified in the invitation for bid and the bid documents. 26a (2) Set-asides. A set-aside is the designation of a given contract for competition solely among Black contractors. Set-asides may only be utilized where prior to invitation for bid, it is determined that there are sufficient licensed Black contractors to afford effective competition for the contract. In each contract where set-asides are recommended, staff shall submit its recommendation and the basis there- for to the Board for its initial review and determi- nation whether waiver of competitive bidding for such contract is in the best interest of the County.” (e) The County Manager shall annually report to the Board on the total dollar amount of County con- struction contracts awarded that year and the per- centage thereof to be performed by Black contractors and subcontractors. At such time, the Board shall determine whether to continue in effect the adminis- trative procedure for utilization of race-conscious measures authorized by this Ordinance. Section 2. Section 10-34 of the Code of Metropolitan Dade County, Florida, is hereby amended as follows: Sec. 10-34. Listing of subcontractors not required; exceptions. Except for contracts for procurement or construc- tion of all or any part of stage 1 of the rapid transit system, construction contracts where race-conscious measures have been included in the bid specifica- tions to foster participation of Black contractors or subcontractors, or where federal or state law or regulations mandate to the contrary, no prime con- tractor submitting a bid for a project for which bids have been solicited by the legal entities to which this article applies shall be required to list thereon the names of any subcontractors it desires to be em- ployed in connection with the subject project. Section 3. Section 25A-4 of the Code of Metropolitan Dade County, Florida is hereby amended by adding the 27a following paragraph at the end of subparagraph (b) of said section: For all construction contracts, the trust shall comply with the provisions of Section 10-38 of the County Code and the administrative procedures adopted pursuant to said section. Section 4. Section 32A-1 of the Code of Metropolitan Dade County, Florida, is hereby amended by adding the following after the last sentence of said section: For all construction contracts, the authority shall comply with the provisions of Section 10-38 of the County Code and the administrative procedures adopted pursuant to said section. Section 5. If any section, subsection, sentence, clause or provision of this ordinance is held invalid, the re- mainder of this ordinance shall not be affected by such invalidity. Section 6. It is the intention of the Board of County Commissioners, and it is hereby ordained that the pro- visions of this ordinance shall become and be made a part of the Code of Metropolitan Dade County, Florida. The sections of this ordinance may be renumbered or re- lettered to accomplish such intention, and the word “ordi- nance” may be changed to “section”, “article”, or other appropriate word. Section 7. This ordinance shall become effective ten (10) days after the date of its enactment. REGULATIONS GOVERNING BID PROCEDURES UNDER ORDINANCE NO. 82-67: 1. DEPARTMENT RESPONSIBILITIES 1.01 All departments (including the Public Health Trust and the Miami-Dade Water and Sewer Authority with funds budgeted for capital improvement projects are to 28a develop a record keeping system which will include the dollar value of all construction contracts anticipated, a goal for Black participation for the fiscal year, and the dollar value of contracts awarded by minority classifica- tion. 1.02 Prior to the completion of contract specifications for each capital project, each department, in conjunction with the consultant project manager, if engaged, will analyze the trades certifications required for each proj- ect. After considering the number and types of Black- owned firms likely to be available to participate in the contract, the goals of the department, and a suggestion as to the type of race-conscious measures which could be provided within the contract work are to be developed. 1.03 Suggested actions shall be for (a) establishment of subcontractor goals, (b) set-asides for contractors, (c) bid credit and (d) no race-conscious requirements. 1.04 Each project is to be submitted to a Contract Re- view Committee for action and recommendation to the Board of County Commissioners. 2. CONTRACT REVIEW COMMITTEE 2.01 A three (3) member Contract Review Committee comprised of an Assistant County Manager, the Capital Improvements Coordinator and the Affirmative Action Coordinator is created. Staff to the Committee will be provided by a Compliance Office included within the Affirmative Action Division. 2.02 The Committee is to meet monthly or sooner, as necessary, for the purpose of reviewing suggestions for the inclusion of race-conscious measures within contract specifications of each construction project. 2.03 Suggested race-conscious actions are to originate by the County project manager for the construction proj- ect and the consultant project manager, if commissioner. 29a 2.04 Projects are to be submitted to the Contract Re- view Committee prior to preparation of the contract specifications. 2.05 The Contract Review Committee, after considering the number of anticipated subcontractors likely to be employed on the job, will recommend at what point the subcontractors will be listed. 2.06 Following review by the Contract Review Com- mittee, a recommendation is to be submitted to the Board of County Commissioners for action, together with the request for advisement. 2.07 Recommendations for set-aside projects require a waiver of formal competitive bids by the Board of County Commissioners. 3. CERTIFICATION 3.01 All firms participating in the Black Contractors and Subcontractors Program will be certified as Black firms. 3.02 Certification records will be maintained by the Contract Compliance Office within the Dade County Af- firmative Action Division. 3.03 Assistance in the certification process will be pro- vided by authorized community-based organizations under contract with Dade County. 3.04 Applications for certification will be on standard forms and will include, but will not be limited to, pri- mary business location, evidence of ownership, operation, experience, and the adequacy of the firms. 3.05 Appeals of denials of certification can be made to the Contract Review Committee. 3.06 Certification of all firms will be updated annually. 3.07 Certification of each firm shall be completed prior to the award of any contract under the Black Contractors Program. 30a 3.08 A concentrated, public advertising campaign by trade certification area will be undertaken to encourage certification. 4. SUBCONTRACTOR GOALS 4.01 Percentage goals for the dollar value of subcon- tractor work are to be considered when the review of the proposed contract indicates the greatest potential for Black subcontractor participation. 4.02 Goals shall relate to the potential availability of Black-owned firms in the required field of expertise. 4.03 Availability should include all Black-owned firms with places of business [that] are within the Dade County geographic area. 4.04 When goals are included with the contract of the prime contractors, bidders shall use good faith efforts to meet the goals. 4.05 Lack of good faith efforts will make the prime contractor’s bid ineligible for award and not responsive. 4.06 A prime contractor may include the subpart of the volume of value of a joint venture of a certified sub- contractor towards the contract goal. 5. SET-ASIDES 5.01 Contracts for set-asides shall be considered in those contracts when at least three (3) certified prime con- tractors with the capabilities consistent with the contract requirements exist. 5.02 A prime contractor can be under contract for only one (1) set-aside contract at a time, and no more than three (3) within any one (1) year period. 5.03 Prior to the advertising for set-aside contracts, the Board of County Commissioners is to make findings as 3la to the proposed set-aside contract in the best interest of the County and waiving formal bid procedures. 5.04 Bid procedures limiting competitive bids to Black certified firms will be implemented. 6. BID CREDIT 6.01 Implementation of bid credit will not be done at this time. RESOLUTION NO R-1350-82: WHEREAS, this Board on November 3, 1981, adopted Resolution No. R-1672-81, finding that Blacks have not proportionately shared in Dade County’s economic devel- opment and setting forth a policy to promote increased Black business participation in County business; and WHEREAS, this Board on July 20, 1982, enacted Ordinance No. 82-67 which requires review of proposed county construction contracts to determine whether the addition to bid specifications of race conscious measures will foster participation of Black contractors and sub- contractors in the contract work; and WHEREAS, pursuant thereto the County Manager has created a contract review committee to review each con- struction contract prior to advertisement and to make recommendations thereon to this Board; and WHEREAS, the committee has reviewed the Metro- rail Earlington Heights Station contract together with the data and suggestions svbmitted by the Dade County Transportation Administration ; and WHEREAS, the committee has determined that there are sufficient licensed Black general contractors to afford effective competition for the station contract were the contract set aside for competition solely among Black contractors, and based thereon has recommended use of a set-aside on this contract; and 32a WHEREAS, in addition thereto, ise committee has estimated the quantity and type of subcontracting oppor- tunities provided by the contract and the availability and capability of Black contractors and subcontractors to do such work and based thereon has recommended a goal of fifty percent (50%) of the dollar value of the contract to be subcontracted to Black contractors; and WHEREAS, Earlington Heights is the last of the 20 Metrorail stations to be bid and is located within the Black community of Dade County; and WHEREAS, increased participation of Black contrac- tors and subcontractors on this contract will have a substantial impact in the community to be served by this station both in terms of the ‘ Ln a x 83a (1) 6. In this case, the plaintiffs are challenging the legal- ity of a system of race-conscious ordinances, resolutions and procedures which permit the county to set-aside a construction contract for competition exclusively among Black contractors and to establish Black subcontractor goals on county construction contracts. It is the position of the plaintiffs that the county is prohibited by the Four- teenth Amendment from applying its race-consious proce- dures to the Earlington Heights contract in such a way that plaintiffs are barred or otherwise restricted from bidding on the contract solely because of their race. The Fourteenth Amendment prohibits a state from “deny[ing] to any person within its jurisdiction the equal protection of the laws.” The equal protection clause means essentially that while the state may of necessity, classify people and activities in order to promote the gen- eral welfare, those persons and activities which are simi- larly situated must be similarly treated by law.?? Neither a state nor one of its subdivisions ** may employ a racial preme Court, 70 Ky.L.J. 1 (1981-82); Belton, Discrimination and Affirmative Action, 59 N.C.L.Rev. 531 (1981) ; Lavinsky, Affirmative Action Trilogy and Benign Racial Classifications—Evolving Law in Need of Standards, 27 Wayne L.Rev. 1 (1980); Baldwin and Nagan, Board of Regents v. Bakke; The All-American Dilemma Revisited, 30 U.Fla.L.Rev. (1978); Fullilove And The Minority Set-Aside: In Search of An Affirmative Action Rationale, 29 Emory L.J. 1127 (1980). 22 F.S. Rogster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920); G. Gunther, Constitutional Law Cases and Materials 678 (10th ed. 1980); J. Nowak, R. Rotunda, V.J. Young, Constitutional Law (1978); Van Benthysen, Minority Business Enterprise Set-Aside: The Reverse Discrimination Chal- lenge, 45 Alb.L.Rev. 1139, 1142 (1981). 23 Counties and county officers are instrumentalities of state power for purposes of the equal protection clause. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1862, 12 L.Ed.2d 506 (1964); Small v. Hudson, 322 F.Supp. 519 (M.D. Fla. 1971). Accord, Avery v. Midland County, Tex., 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968). 84a classification in the imposition of rights and responsibili- ties on its residents or in the distribution of benefits without inviting scrutiny by the courts as to the consti- tutionality of these classifications. Two recent notable cases out of the Supreme Court provide some guidance in resolving the important issue of whether the application of a benign racial classification is justified in this in- stance. 7. The constitutionality of a state’s affirmative action plan mandating preferences on the basis of racial or ethnic origin was first addressed by the U.S. Supreme Court in Regents of the University of California v. Bakke, 488 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) .2* The challenge was to an admissions program adopted by the medical school of the University of Cali- fornia at Davis. Under that program, sixteen of the one hundred places were specifically reserved for minority applicants. Bakke, a white male whose application had been rejected, alleged that he would have been accepted but for the Davis affirmative action plan. He argued that the school had violated Title VI of the Civil Rights Act of 1964*° and the equal protection clause of the Four- teenth Amendment. Five Justices, concluding that an action violates Title VI only if a similar state action would violate equal protection, reached the constitutional question. See Bakke, 438 U.S. at 287, 98 S.Ct. at 2746 (Powell, J.), 328, 355, *' This opinion has been the subject of a number of law review comments. See 32 Ark.L.Rev. 499 (1978); 92 Harv.L.Rev. 131 (1978) ; 32 Oklahoma Law Rev. 119 (1979); 54 Washington Law Rev. 373 (1979) ; 58 Or.L.Rev. 311 (1979). 25 This provision states: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” The applicability of this statute is not an issue in this case. 85a 98 §.Ct. 2676, 2781 (Brennan, White, Marshall, Black- mun, JJ.). As to the equal protection question, Justice Powell expressed the view that all racial classifications which exclude individuals from the enjoyment of some opportunity, including those classifications operating in favor of minorities, call for strict scrutiny. Applying that standard, he concluded that a state university has a compelling interest in attracting a diverse student body, but that the strict racial quota imposed by the Davis plan was not necessary to the achievement of that goal. He held, therefore, that the Davis program violated equal protection. Justice Powell then stated, however, that in his view race may be considered as one factor in an ad- missions program aimed at achieving student diversity. Justices Brennan, White, Marshall, and Blackmun joined in an opinion concurring and dissenting. On the equal protection question, they would have held that racial classifications designed to further remedial pur- poses were subject only to an intermediate level of scru- tiny; i.e, the classification must be substantially related to an important governmental interest. They found the Davis plan substantially related to the important state interest in remedying the effects of past societal discrimi- nation and, therefore, constitutional.” Justice Stevens, concurring and dissenting, was joined by the Chief Justice and by Justices Stewart and Rehn- quist. The opinion by Justice Stevens concluded that the Davis plan violated Title VI, and did not reach the equal protection issue. Thus, a majority of five Justices held that a state uni- versity admissions program may not employ strict racial 26 This opinion did not articulate a precise test by which lower courts could be guided in the application of this intermediate level of scrutiny. These four justices approved both the Davis 16% quota in Bakke and the Congressional 10% set-aside in Fullilove. They found that both affirmative action plans were constitutionally acceptable. 86a quotas, one of the five reaching that decision on constitu- tional grounds and the other four on statutory grounds. A separate majority of five Justices, however, held that a state university admissions program may take race into account as one factor." 8. In 1980 the Supreme Court revisted this issue in Fullilove v. Klutenick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980) ,2* where the Court addressed the con- stitutionality of the minority business enterprise provi- sion of the Public Works Employment Act of 1977.% 42 U.S.C. § 6705(f) (2). Under that provision, no federal grant for a local public works project may be made with- out assurance by the applicant that at least ten percent of the amount of the grant will be expended for mi- nority business enterprises or MBE’s. The implement- 27 The Court is indebted to Judge Fletcher of the Ninth Circuit for her succinct summaries of Bakke and Fullilove in Schmidt v. Oakland Unified School District, 662 F.2d 550 (9th Cir. 1981). Since Judge Fletcher’s terse summaries of these important cases cannot easily be improved, they have been adopted with some modification for use in this opinion. 28 Like the Bakke opinion, Fullilove has attracted considerable at- tention in the law reviews. A number of case comments have been written about it: eg. 94 Harv.L.Rev. 125 (1980) ; 15 Suffolk U.Law. J. 306 (1981); 60 N.C.L.Rev. 681 (1982); 38 Wash. & Lee L.Rev. 1315 (1981). 29 The legality of an all-private (no governmental entity was in- volved), voluntary, race-conscious affirmative action plan was dis- cussed in United Steelworkers of America v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979). The Court held that an af- firmative action plan that was collectively bargained by an employer and a union and that reserved for Black employees 50 percent of the openings in an inplant craft training program until the per- centage of Black craft workers in the plant was commensurate with the percentage of Blacks in the local labor force did not violate Title VI of the Civil Rights Act of 1964. No constitutional issues were implicated by the decision since the plan reviewed there did not in- volve state action and therefore the principles developed in that case have minimal significance to the issues raised in our case. x Ed = ¥ g % : - 5 4 s « : t 5 3 : ¥ : 3 $ t § = : 4 2 - = : 5 87a ing regulations made clear the administrative under- standing that a waiver or partial waiver is justified to avoid subcontracting with an MBE at an unreasonable price, i.e., a price above competitive levels which can- not be attributed to the minority firm’s attempt to cover costs inflated by the present effects of disadvantaged or discrimination. An aggrieved white contractor argued that the statutory provision violated equal protection. The Chief Justice, in an opinion joined by Justices White and Powell, found the plan constitutional and ap- proved the act. The plurality opinion concluded that Con- gress acted within its competence in seeking ways to end procurement practices that can perpetuate the effects of prior discrimination. Although the Chief Justice emphasized that “[a]ny preference based on racial or ethnic criteria must neces- sarily receive a most searching examination to make sure that it does not conflict with constitutional guarantees,” 448 U.S. at 491, 100 S.Ct. at 2781, he considered several factors that tipped the balance in favor of the statute’s constitutionality : a. The statute was enacted by the Congress, a co- equal branch of government, as a remedial measure with the objective of directing funds into the minority busi- ness community. b. Congress had before it abundant evidence from which it could conclude that this remedial measure was necessary to eliminate the effects of prior discrimination that traditional government procurement practices tended to perpetuate. ec. The MBE plan envisioned by the statute allowed administrative waivers and exemptions that would ab- solve a grantee from compliance with the plan after mak- ing a good faith effort to achieve its objectives. While the Chief Justice warned that the MBE statute “press[ed] the outer limits of Congressional authority,” 88a 448 U.S. at 490, 100 S.Ct. at 2781, he concluded that it passed constitutional muster since it provided a reason- able assurance that application of racial or ethnic cri- teria would be limited to accomplishing the remedial ob- jectives of Congress and that misapplications of the pro- gram will be promptly and adequately remedied admin- istratively. 9. While the plurality opinion did not explicitly state what standard of review should be applied to benign ra- cial or ethnic classifications,” Justice Powell wrote a concurring opinion in which he repeated his belief, first expressed in Bakke, that the strict scrutiny standard should be applied. Justice Powell believes that a classification is constitu- tionally prohibited unless it is a necessary means of ad- vancing a compelling governmental interest. To impose a race-conscious remedy, two requirements must be met. First, the particular governmental body involved must have the authority (and capability) to act in response to identified discrimination. Second, the governmental body must make findings that demonstrate the existence of illegal discrimination. Fullilove, supra 448 U.S. at 498, i100 S.Ct. 2785 (Powell, J., concurring). The third part of the Powell test provides that the means selected by the governmental body be narrowly drawn to fulfill the pur- pose of the remedial measures taken. Justice Powell maintains that there is a compelling governmental interest in eradicating the continuing ef- fects of past discrimination. However, even a benign racial classification must be responsive te identified dis- crimination, that is, a more focused attempt to remedy 30 = Benign discrimination means discrimination on the basis of race which is designed to benefit members of supposedly dis- advantaged minority groups. It usually results in some degree of disentitlement for the nonpreferred members of the major- ity White race. G. Guntler, Constitutional Law Cases v. Ma- terials, 678 (10th ed. 1980) [quoted in 45 Alb.L.J. at 1149-50). 89a the effects of past discrimination in one particular group or industry, not society at large. Justice Powell was quite clear that the general interest of remedying past societal discrimination could not justify the use of race- conscious measures.** Finally, once the governmental body proffers a compelling interest to support its reliance upon a racial classification, it must select a remedy nar- rowly drawn to fulfill its purpose. To survive strict judicial scrutiny, a race-conscious classification must be measured by this standard. In reviewing the propriety of a race-conscious remedy, Justice Powell listed and approved several factors pre- viously considered by the lower courts in making their determinations: (i) the efficacy of alternative remedies, NAACP v. Allen, 493 F.2d 614, 619 (CA5 1974); Vulcan So- ciety v. Civil Service Comm’n, 490 F.2d 387, 398 (CA2 1973); (ii) the planned duration of the rem- edy. Vulcan Society Inc. v. Civil Service Comm'n, 490 F.2d at 399; United States v. Wood, Wife [Wire], & Metal Lathers Local 46, 471 F.2d 408, 414, n. 12 (CA2), cert. denied, 412 U.S. 939, 93 S.Ct. 2778, 837 L.Ed.2d 398 (1973), (iii) the rela- tionship between the percentage of minority workers to be employed and the percentage of minority group members in the relevant population or work force, Association Against Discrimination v. Bridgeport, 594 F.2d 306, 311 (CA2 1979); Boston Chapter NAACP v. Beecher, 504 F.2d 1017, 1026-1027 (CA1 31 Justice Powell expanded on this thought in Bakke, 488 U.S. at 307, 98 S.Ct. at 2757 where he said: The State certainly has a legitimate and substantial interest in ameliorating or eliminating where feasible, the disabling effects of identified discrimination .... That goal was far more fo- cused than the remedying of the effect of “societal discrimina- tion,” an amorphous concept of injury that may be ageless in its reach into the past. 90a 1974), cert. denied, 421 U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (1975); Bridgeport Guardians, Inc. v. Bridgeport Civil Service Comm’n, 482 F.d 1333, 1341 (CA2 1972), cert. denied, 421 U.S. 991, 95 S.Ct. 1997, 44 L.Ed.2d 481 (1975); Carter v. Gal- lagher, 452 F.2d 315, 331 (CA8) (en banc), cert. denied, 406 U.S. 950, 92 S.Ct. 2045, 32 L.Ed.2d 388 (1972), and (iv) the availability of waiver pro- visions if the hiring pian could not be met, Asso- ciated General Contractors Inc. v. Altshuler, 490 F.2d 9, 18-19 (CAl 1973), cert. denied, 416 U.S. 957, 94 S.Ct. 1971, 40 L.Ed.2d 307 (1974) (empha- sis added) Ibid. 448 U.S. at 510-11, 100 S.Ct. at 2791. A fifth factor was added by Justice Powell: the effect of the set-aside upon innocent third parties. 448 U.S. at 514, 100 S.Ct. at 2793. 10. After the Supreme Court decisions of Fullilove and Bakke,” some federal and state courts have applied the strict scrutiny standard in determiing the constitu- tionality of race-conscious remedies. See e.g. Morgan v. O’Bryant, 671 F.2d 23 (1st Cir. 1982) (applying strict scrutiny to uphold an affirmative action plan by a local school board directing teacher layoffs in such a way as to maintain the current percentage of black teachers and administrators) ; M.C. West, Inc. v. Lewis, 522 F.Supp. 338 (M.D. Tenn. 1981) (employing strict scrutiny in af- firming MBE regulations promulgated by the U.S. De 32 Even before the Fullilove decision, the federa] district courts applied the strict scrutiny standard in those cases which first chal- lenged the 10% MBE set-aside of the PWEA enacted by Congress. See e.g. Constructors Assoc. of Western PA. v. Kreps, 441 F.Supp. 936 (W.D. Penn. 1977); affirmed 573 F.2d 811 (3rd Cir. 1978); Ohio Contractors Ass’n v. Economic Development, 452 F.Supp. 1013 (S.D. Ohio 1977; affirmed 580 F.2d 213 (6th Cir. 1978) ; Carolinas Branch, Associated, Etc. v. Kreps, 442 F.Supp. 392 (D. South Caro- lina 1977); Fullilove v. Kreps, 443 F.Supp. 2538 (S.D.N.Y. 1977), affirmed, 584 F.2d 600 (2d Cir. 1978). 9la partment of Transportation) ; Perini Corporation et al. v. Massachusetts Bay Transportation Authority, et al., No. 77-2340-MC (D.Mass. 1980) (using the strict scru- tiny standard to conclude that the defendants had not made the requisite findings of illegal discrimination) ; Central Alabama Paving, Inc. v. James, 499 F.Supp. 629 (M.D.Ala. 1980) (applying strict scrutiny to invali- date MBE set-aside regulations promulgated by the U.S. Department of Transportation) ; Arrington v. Associated General Contractors, 403 So.2d 893 (Ala. 1981); cert. denied, 455 U.S. 918, 102 S.Ct. 1265, 71 S.Ct. 453 (1982) (utilizing the strict scrutiny standard to invali- date a municipal ordinance establishing an MBE require- ment for city contracts on the grounds, inter alia, that the race-conscious remedy was not sufficiently narrow to comport with equal protection guarantees) . Other courts have refrained from adopting any ex- press standard of scrutiny. See e.g. Schmidt v. Oakland Unified School District, 662 F.2d 550 (9th Cir. 1981), vacated and remanded on other grounds, —— U.S. ——, 102 S.Ct. 2612, 73 L.Ed.2d 245 (1982) (upholding the constitutionality of a plan requiring a general contractor bidding on a school construction project to use minority owned businesses for at least 25% of the dollar amount of the total bid); Local Union No. 35 ete. v. City of Hartford, 625 F.2d 416 (2d Cir. 1980), cert. denied, 453 U.S. 913, 101 S.Ct. 3148, 69 L.Ed.2d 997 (1981) (vali- dating a municipal ordinance containing an affirmative action plan requiring a good faith effort to achieve at least a 15% level of minority and female employment) ; Pettinaro Const. Co., Inc. v. Delaware Authority, etc., 500 F.Supp. 559 (D.Del., 1980) (applying “stringent standards” to deny a motion for summary judgment of plaintiff-contractor who was challenging a 15% minority set-aside goal). 11. Since the Supreme Court has not expressed a ma- jority view on what level of scrutiny must be applied to EE 92a preferential racial quotus or numerical goals for mi- ncrities disadvantaged by the present effects of past dis- crimination, lower courts retain the authority to appro- priately examine affirmative action programs involving benign discrimiation. It appears however that there is an evolving doctrine gradually developing in the federal courts that benign racial or ethnic classifications are sub- ject to strict judicial scrutiny and may only be employed when necessary to accomplish a compelling governmental interest. As our society gradually emerges from the dark shad- ows of great unequal treatment into the sunshine of true equality of opportunity regardiess of race, the justifica- tion for affirmative action and the discrimination that necessarily results from affirmative action will disappear. While that point has not yet been reached, substantial progress has been made. As this nation strives towards its ultimate goal of racial equality, the courts must be increasingly vigilant of the remedies employed to reach that goal. The need for strict judicial scrutiny will in- crease, not lessen since the justification for benign racial classifications will eventually disappear. Accordingly, it is the judgment of this court that in order to prevail, the county’s race-conscious policy must pass the test of strict scrutiny. If it fails to measure up to this exact- ing standard, it cannot be permitted to continue. (2) 12. Plaintiffs attack the county’s race-conscious pro- gram on three fronts: (a) by questioning the county’s competence to make findings in the area of race dis- crimination; (b) by challenging the adequacy of the rec- 33 As explained in part III-B(2) of this opinion, the set-aside fails under the strict scrutiny standard. The Court refrains from decid- ing whether the set-aside would pass constitutional muster under any lesser standard. The goals provision, of course, would be sus- tained under any lesser standard of scrutiny. 93a ord upon which the county made its findings of discrimi- nation; and (b) by asserting that the race-conscious remedy imposed by the county is not carefully tailored to rectify the continuing effects of past unlawful dis- crimination.™ The first two points can be disposed of without extended discussion. The third contention, how- ever, will require extensive analysis. (i) Plaintiffs initially contend that the county commission has neither the authority nor the competence to make factual and legal determinations in the area of race dis- crimination. This argument is without merit since the county clearly has the authority to make the findings _ upon which its race-conscious policy was based. Dade County is authorized by its Home Rule Charter, among other things, to: a. Conduct studies of county population, . .. fa- cilities, resources, and needs and other factors which influence the county’s development, and on the basis of such studies prepare such... reports... for the . . . economic . . . development of the county. Section 4.07. b. Make investigations of county affairs, inquire into the conduct, accounts, records, and transactions of any department or office of the county, and for these purposes require reports .... Section 1.01A (20). ce. Prepare and enforce comprehensive plans for the development of the county. Section 1.01A(5). d. Use public funds for the purposes of promoting the development of the county... .” Section 1.01A (15). %4 The last contention is really one of the requisites of the strict scrutiny standard, See part III, post. 94a e. Provide and operate . . . public transportation systems.” Section 1.01A(2). f. Adopt such ordinances and resolutions as may be required in the exercise of its powers... .” Section 1.01A (22). g. Perform any other acts consistent with law which are required by this Charter or wiich are in the common interest of the people of the county.” Section 1.01A (23). A county commission functions as a legislative body in making county policy and enacting local law.® Justice Powell’s concern, expressed in Bakke, 488 U.S. at 309, 98 S.Ct. at 2758, that “isolated segments of our vast governmental structures are not competent to make... decisions . . . [involving the imposition of race-conscious remedies],” should not deter this Court from accepting the findings made by the county commission. Justice Powell was speaking about subordinate, mostly admin- istrative bodies, that do not possess lawmaking powers, for example, a state university.” Here, the county com- mission is the duly elected legislative body of local gov- ernment. Consequently, the Court concludes that the commission had the competence and the authority to de termine that Blacks have not shared proportionately in the county’s economic development, as well as the ability to enact a race-conscious program to remedy this situation. (ii) 14. Plaintiffs next argue that the commission did not compile the necessary record that would justify the need 35 In Florida, county governments are granted a number of powers and duties by the State. See Fla.Stat.Ann. § 125.01 (West Supp. 1982) Dade County’s Home Rule Charter, Fla.Const. Art. VIII § 6, gives the county commission of this county even greater powers not normally available under general law. 86 The defendants in Bakke were, of course, the Regents of the University of California, an administrative agency without any legislative expertise. 95a for a race-conscious ordinance. At the time it enacted Or- dinance 82-67 and Resolution R-1350-82, the commission had available to it various reports and studies described previously in this Court’s findings of fact. Contrary to Plaintiffs’ contention, the information con- tained in these reports do provide a substantial basis for the actions taken by the county commission, including the implementation of race-conscious measures and the Court made a finding to this effect.*7 Indeed, plaintiffs do not even suggest what additional better information the commission could have relied on in making its find- ings that Blacks have not proportionately shared in the county’s economic development. (iii) 15. Thus far the Court has ruled that the county com- mission had the authority to act in response to identified discrimination and that it had an adequate record upon which to make findings that demonstrate the existence of identified discrimination. The next critical inquiry is whether the county’s race-conscious program is a con- stitutionally appropriate means of serving the compel- ling governmental interest of remedying the present ef- fects of past identified discrimination. Consequently, the central issue for decision by the Court is whether the means employed by the county was carefully tailored for that purpose. 16. As already stated, the means test proposes an evaluation of the following factors: a) efficacy of alternative remedies, i.e. are there less intrusive means which might serve the compelling state interest; b) the planned duration of the remedy; 87 See Finding of Fact No. 17. 96a c) the relationship between the percentage of mi- nority workers to be employed and the percentage of mi- nority group members in the relevant population or work force, i.e. is there a reasonable relationship between the minority workers to be hired to the percentage of mi- nority group members in the relevant population ; d) the availability of waiver provisions; and e) the effect of the set aside on innocent third parties. In order to determine whether the county’s race-conscious program passes constitutional scrutiny, the two principal parts of the program must be examined separately. 17. THE SET-ASIDE. The set-aside provision of Or- dinance 82-67 restricts competition in a given contract solely among Black contractors. It contains two limiting provisions, however, in its application. First, it may only be used when the county commission has determined it to be “in the best interest of the county.” Next, it may only be used where it has been previously administra- tively determined that there are sufficient licensed Black contractors to afford effective competition for the con- tract. Ordinance 82-67 does not, of itself, set-aside any contract. It simply defines what race-conscious proce- dures will be employed if and when it has been deter- mined that a contract should be set-aside. Resolution R-1350-82 actually set-aside the Earlington Heights sta- tion contract for competition exclusively among Black prime contractors. The set-aside has several important consequences. First and most obviously, it excludes every potential prime contractor from even submitting a bid on the Earlington Heights contract unless the contractor hap- pens to be Black-owned.* It is more than race-conscious, it is race exclusive. Second, it assumes that there are 38 Non-Black contractors can participate as part of a joint venture with a Black contractor. This apparently was done in the case of one of the bidders to this contract. i € & . 4 i » : 4 i £ ~ ¥ 2 ¢ 3 4 rs % e ee # i a | * a; é k & z ‘ 97a sufficient Black prime contractors to make an effective bid, even if the county has to encourage contractors from other areas of the country to participate. Finally, the set-aside marks an unusual departure from the set- tled principles of competitive bidding that is the distin- guishing characteristic of government contracting. See eg., 41 U.S.C.A. §§ 252, 253, Fla. Stat. Ann. § 255.29; Dade County Home Rule Charter, § 4.03(D). 18. In order to determine whether the county‘s set- aside is a constitutionally appropriate means of serving the compelling interest of redressing the effects of past discrimination, the set-aside remedy must be carefully tailored to achieve that objective in a manner reasonably related to the desired end of removing the continuing effects of past discrimination against Black contractors in Dade County. Measured against this standard the county’s set-aside is clearly impermissible. Indeed, the question is not even close. The set-aside fails all five of the factors employed by the means test. 19. First, there are substantially less intrusive reme- dies available to the county for increasing Black con- tractor participation in the Metrorail system without totally excluding White contractors from a _ substan- tial benefit to which they would otherwise be entitled. For instance, the MBE goals already targeted by the county in accordance with federal regulations provide an excellent vehicle for involving greater minority partici- pation in the overall project. In fact, as of September 30, 1982 the actual MBE participation of 19.6% exceeded the MBE goal of 16.5%. While the Court recognizes that this MBE goal includes other minorities in addition to Blacks, some 7% of the Metrorail contracts have in fact gone to Black contractors. How far locai govern- ment can go in setting goals for minority participation will be discussed shortly, but a goal-oriented remedy of some sort is certainly less intrusive than an exclusive set-aside for Black contractors. 98a There are other positive proposals available to the county that may increase Black participation by making Black-owned firms more competitive in the bidding proc- ess itself, without excluding others from that process. The county may assist the Black contractor in preparing his bid and informing him of the intricacies of the gov- ernment procurement process. The county has estab- lished a bond guarantee program for assisting Black contractors in meeting the bonding requirements for par- ticipation in county contracts. The county has affirma- tively contacted Black businesses in an effort to make them aware of their eligibility and to involve them in county contracting.*® In short, there are alternative rem- edies available to the county, some of which are now in effect, that are designed to meet the county’s objective without imposing an exclusive set-aside that disadvan- tages others solely on the basis of race. 20. Second, while the Earlington Heights Station is a specifically designated set-aside, the underlying ordinance upon which the set-aside is based, 82-67, has no specific time limit. It is applicable to all future county contracts whether Metrorail or not. The county’s representation that its race-conscious program would self-destruct by its own terms if and when Black contractors ever re- ceive county contracts in proportion to their representa- 39 Certainly, the county should be encouraged tc seek out local qualified Black contractors and take positive action to make them more competitive. Whether the county’s objective of improving the local Black business climate is fostered by soliciting bids from out- of-state Black owned firms is another matter. The county has failed to articulate a rational basis for the preposition that an outside Black prime contractor will have a more positive impact on Black- owned businesses in Dade County than would a local White-owned contractor who aggressively seeks to employ Black subcontractors in the project. While awarding the prime contract for the Earling- ton Heights station to an outside Black prime contractor may be symbolic (and that may be a legitimate consideration for a local political body), it would not seem to involve any tangible benefits per se for the local Black business community. 99a tion in the overall population is at best indefinite and provides no firm guidance as to when this program will expire. Even though the Court is inclined to agree that the commission intended that the program terminate at that point, there is nothing in this record from which the Court could infer that there will ever be enough Black contractors in this county to participate to that extent. Unlike the Congressional set-aside approved in Fullilove, the county’s set-aside appears designed to be a permanent part of its contracting requirements. Its permanent nature is in sharp contrast with the PWEA set-aside. That act was intended as a short-term meas- ure to alleviate the problem of national employment and to stimulate the national economy. Fullilove, supra, 448 U.S. at 456-57, 100 S.Ct. at 2763-2764. The duration of the set-aside was not conditioned upon meeting any fixed percentage such as 10% (the percentage of the set-aside) or 17% (the percentage of minority group members in the nation). The act provided by its own terms that fed- eral monies be committed to state and local grantees by September 30, 1977. 42 U.S.C.A. § 6707(h) (1). There is no equivalent section in Ordinance 82-67. 21. The next consideration is whether there is a rea- sonable relationship between the 100% set aside and the percentage of Blacks in the local population, i.e. 17%. Justice Powell in Fullilove approved the 10% set aside finding that it was roughly halfway between the per- centage of minority contractors and the percentage of minority group members in the nation. In the instant case, however, 100% set aside far exceeds the percent- age of Blacks in the local population. The county urges the Court to view the set-aside in the context of overall county contracting and not just one Metrorail project. Over a ten year period, it is con- tended, the county will expend approximately 6.5 billion dollars on all its contracts. When the 40 million dollars worth of Metrorail contracts allocated on a race-conscious 100a basis is compared to the total expenditure of 6.5 billion, it amounts to approximately .6% of all contracts set- aside for Blacks. Instead of 100% of one contract set- aside for Blacks, the county suggests that the Court should view this from the perspective of a .6% set-aside, a much more acceptable percentage when examined in the context of total county contracting over a ten year period. Although this is a novel perspective to view the set- aside, it is an incorrect one. Any theory which purports to give complete benefits to members of one race under the guise of a “totality” theory is fallacious. In the first place we have no “totality” of contracts before the Court. What we have is a single contract for the construction of the Earlington Heights Metrurail Station. It is the county’s procedure of setting aside that contract that is at issue here, not the county’s potential ten year plan involving thousands of contracts. What the county may do in the future is entirely speculative. It may set-aside .6% of all future contracts or it may immediately set- aside 17% of all future contracts uniil Black contrac- tors share the requisite proportion of all county con- tracting.*© It is the propriety of the 100% set-aside of the Earlington Heights station that is for the determi- nation of the Court. Nothing else. Furthermore, every exclusive set-aside could be justi- fied if it was placed in a larger context. Each set-aside 40 The county manager testified on that point: Q. Mr. Stierheim, listening to your counsel’s last question, are you saying that your object here is to award $100,000,000 out of $600,000,000 this year to black contractors? A. I don’t think that is something achievable overnight. I think it is a worthy goal for this community over the next twenty, thirty years, and the quicker we get to it, I think the better off we will be. Q. Over the next twenty or thirty years, you feel that 17 per- cent would be an attainable goal. Is that correct? A. Ican’t give you a year figure. That is impossible. Q. I am trying to know what is your figure for this year, Mr. Stierheim. A. Progress. 10la must be evaluated on its own merits and under the par- ticular conditions in which it developed. It therefore can- not be considered in the totality of county procurement.** 22. Turning to the next aspect of the means test, we find that the county’s set-aside contains no waiver pro- vision. While the set-aside is conditioned on the avail- ability of responsible Black prime contractors; availabil- ity is a determination made solely by the county. There is no procedure by which an aggrieved White prime con- tractor can seek an administrative waiver from his ex- clusion under the set-aside.” 41 The county’s reliance on J.H. Rutter Rex Manufacturing Co. v. United States, 534 F.Supp. 331 (E.D. La. 1982) does not persuade the Court otherwise. The outcome of that case was contingent upon the court’s interpretation of regulations promulgated under the Armed Forces Procurement Act, 10 U.S.C.A. § 2301 et seq., and the Small Business Act, 15 U.S.C.A. § 631 et seq. To implement the Federal Government’s policy, that a fair proportion of its purchases and contracts be placed with small business concerns, certain agency regulations provide that the entire amount of a contract shall be set-aside, under certain circumstances, for exclusive small business participation. This overall policy was deemed by Congress to be in the national interest as part of our national defense. Plaintiff was a manufacturer excluded from competing for a contract that was set-aside for small business concerns. Plaintiff was excluded because of its size. The district court upheld the exclusion. The distinguishing features of the case are transparent. The court was faced with the task of determining, inter alia, whether Plaintiff was being deprived of a property interest without due process of law. No equal protection interests were implicated. Thus, no strict scrutiny was applied by the court. Moreover, the broadly worded statutory language construed by the district court referred to the totality of government procurement. No such reference is apparent in the instant case from any of the features of the county’s race-conscious policy. Accordingly, the county can take no comfort from the Rutter case. 42 In sharp contrast to the county’s set-aside, the PWEA set-aside upheld in Fullilove had a comprehensive administrative scheme for granting waivers. See Fullilove, supra, 448 U.S. at 469-71, 100 S.Ct. at 2770-71. (Burger, J.). 102a 23. Finally, it is unquestioned that the county’s set aside has an adverse effect on innocent third parties, in this case, White prime contractors. Solely because of race, a White prime contractor is precluded from sub- mitting a bid on the Earlington Heights station. 24. In summary, the county’s 100% set-aside amounts to an impermissible preference of one racial group over another and therefore cannot stand.* It is a constitu- tionally inappropriate means of serving the purpose for which it was designed. The selection of a Black prime contractor does not reasonably increase the overall Black participation in the Metrorail system where that objective can be achieved by other, less intrusive, alternatives. When a race conscious remedy has totally excluded an in- dividual from a substantial benefit solely on grounds of race, it cannot stand. The county will therefore be en- joined from applying the set aside provision of Ordi- nance 82-67 to the Earlington Heights Contract. 25. SUBCONTRACTING GOALS. The second major feature of the county’s race-conscious policy is the appli- cation of a goal of 50% of the dollar of the prime con- 43 The county also relies heavily upon the Fifth Circuit case of Ray Baillie Trash Hauling, Inc. v. Kleppe, 477 F.2d 696 (5th Cir. 1973). This case does not alter the Court’s determination that the 100% set-aside is impermissible. First and most important is the fact that the Fifth Circuit in that case expressly declined to reach the “discrimination” or equal protection issue. Second, the Small Business Administration is a federal agency and the challenged Section 8(a) program was found by the court to be “supported by Congressional and presidential mandates.” 477 F.2d at 705-708. In sharp contrast, the challenge in the present case is to a local ordi- nance and resolution enacted by a county commission. Third, eligi- bility for the Section 8(a) program includes all concerns owned by socially or economically disadvantaged persons; thus, the classifica- tion is not on the basis of race nor is participation solely restricted to a particular minority group, unlike the ordinance and resolution under review. Finally, the plaintiffs in Ray Baillie had no standing to challenge the constitutionality of the program and its adminis- tration. 477 F.2d 709-10. 108a tract for Earlington Heights to be subcontracted to Black contractors. This goal is contingent upon the availability and capability of Black contractors to do the work.“ There is however a waiver provision included in this sec- tion in which a qualified bidder may “demonstrate that he made every reasonable effort to meet the goal and not- withstanding such effort were [sic] unable to do so.” What this means simply is that a successful bidder must either insure that there are sufficient Black subcontrac- tors to do 50% of the dollar value of the contract or demonstrate why, after making a good faith effort, this goal could not be inet. Plaintiffs challenge the 50% goal principally because they assert that it is unreasonably high under the cir- cumstances presented by this record. The Court does not agree. Although the issue is an extremely close one, the Court finds that the goal imposed by the county is rea- sonably related to the objective of increasing Black in- volvement in county construction contracts and that the fifty percent participation rate is not excessive in light of the racial realities that presently exist in Dade County.* 26. The difficulty with this part of the county’s race- conscious program lies not with the use of a goal itself but with the high numerical percentage chosen by the county. There is nothing wrong with a numerical goal or quota per se.** Affirmative action plans containing goals ranging from 2% to 50% have been upheld by the courts under a variety of factual situations‘? Although 44 Contracts awarded under this provision also require that the Black subcontractor have a place of business within the Dade County geographical area. 45 See Finding of Fact No. 48. 46 Whether the county describes its remedy as a quota or a goal, it is a line drawn on the basis of race and ethnic status. Bakke, supra, 438 U.S. at 289, 98 S.Ct. at 2747. 47 See United Steelworkers of America v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979) (50% of the openings in newly 104a there has been some discussion about the semantical dis- tinction between impermissible quotas and flexible racial preferences or goals, Valentine v. Smith, supra at 510 n. 15, Bakke, supra 438 U.S. at 317, 98 S.Ct. at 2762, there is nothing illegal about the use of a goal so long as it contains sufficient flexibility to distinguish it from an impermissible quota. The question then arises whether this 50% goal is reasonably related to its objective of attracting more Black participation in county construction contracting. To survive strict judicial scrutiny, the same test applies to the numerical goal that was previously applied to the set-aside. 27. The numerical goal suffers from several of the same disabilities as the set-aside. For example, the pro- gram has no definite expiration period incorporated into the race-conscious ordinance itself. Its duration is en- tirely at the discretion of the county commission. They may continue the program indefinitely or terminate it at once. created in-plant training programs reserved for Blacks); Schmidt v. Oakland United School District, 662 F.2d 550 (9th Cir. 1981), vacated and remanded on other grounds, —— U.S. , 102 S.Ct. 2612, 73 L.Ed.2d 245 (1982) (25% MBE set-aside on school con- struction projects); Valentine v. Smith, 654 F.2d 503 (8th Cir.), cert. denied, 454 U.S. 1124, 102 S.Ct. 972, 71 L.Ed.2d 111 (1981) (requiring 25% of the faculty hired between 1976-1979 to be Black) ; Local Union No. 35 etc. v. City of Hartford, 625 F.2d 416 (2d Cir. 1980), cert. denied, 453 U.S. 918, 101 S.Ct. 3148, 69 L.Ed.2d 997 (1981) (15% level of minority and women employment with re- gards to city’s major construction contracts); Associated General Contractors of Massachusetts, Inc. v. Altshuler, 490 F.2d 9 (1st Cir. 1973), cert. denied, 416 U.S. 957, 94 S.Ct. 1971, 40 L.E.2d 307 (1974) ‘20% minority hiring goal on state construction projects); M.C. West, Inc. v. Lewis, 522 F.Supp. 338 (M.D. Tenn. 1981) (2.5% MBE set-aside and a 1% WBE set-aside on state highway construc- tion projects). 105a The use of a numerical goal has an adverse effect on innocent White contractors since it compels a preference for Black contractors. This consequence is less severe than the set-aside since it leaves one-half of the dollar value of a prime contract available for White contrac- tors without any restrictions. Consequently, its adverse effect is more widely dispersed than the set-aside.*® 28. Even with these liabilities, the numerical goal por- tion of the county’s race-conscious program is not without important support. First and most importantly, it has a reasonable waiver provision built in that will ameliorate any hardships on a particular prime contract. If one- half of the values of the prime contract cannot be awarded to responsive, eligible Black contractors, the per- centage can be adjusted downward to reflect the eco- nomic realities that exist. This is in stark contrast to the set-aside.* Alternative remedies do exist but they consist generally of those previously mentioned in the discussion of the set-aside: educational and administrative assistance, fi- nancial guarantees, increased awareness of potential op- portunities. In this situation the obvious alternative remedy is to select a lower percentage as a goal. Other than that there are no readily available alternatives to the use of a numerical goal. 2S. Up to this point in our analysis of the 50% goal there is no obvious determination regarding the constitu- 48 Cf. Fullilove, supra 448 U.S. 515, 100 S.Ct. at 2793 (Powell, J.). #2 Although the county suggests that there is a de facto waiver provision in the set-aside because three eligible Black contractors must be available before any contract can be set-aside, this is not a waiver. Under the county’s plan, the county is solely responsible for determining whether the requisite Black contractors exist. A waiver however permits the contractor to participate even if he cannot locate the required number of Black subcontractors so long as he makes a good faith effort. 106a tionality of this feature. Both the waiver provision and the lack of practical alternatives lend support to the con- clusion that it is a constitutionally appropriate means of serving the county’s objective of increasing Black con- tractor participation in its contracting. Conversely, the 50% goal is indefinite in duration and adversely impacts innocent White subcontractors. The ultimate determina- tion therefore depends on whether there is a reasonable relationship between the 50% goal and the percentage of Blacks in the population of Dade County.” 30. Once the basic concept of a race-conscious numeri- cal goal has been constitutionally approved, the percent- age goal selected is largely a matter of discretion. [I]f a 50 percent quota is legal, so also is a 30 per- cent, a 50 percent, or a 75 percent quota. See United Steelworkers v. Weber, 443 U.S. 1938, 208, 09, 99 S.Ct. 2721, 2730, 31, 61 L.Ed.2d 480 (1979). Conse- quently, there is no distinction in the figures. The only giant step has now been taken and judicially approved. From 15 percent to 75 percent is simply the continuance of a process already under way, and there is no logical stopping place in between. Local Union No. 85, etc. v. City of Hartford, 625 F.2d 416, 428 (2d Cir. 1980) (Van Graafeiland, J., dissent- ing). The Court’s function in this case is limited to deciding whether the county commission abused its discretion 50 The Court rejects plaintiffs’ contention that a more significant relationship is that between the percentage of Black contractors available and eligible to participate in a specific county contract and the percentage of the county contracts actually awarded to Black contractors. The relationship of the percentage of minority workers to be employed and the percentage of minority group members in the relevant population or work force has already been judicially approved. See Fullilove, supra 448 U.S. at 510, 100 S.Ct. at 2791 (and cases cited) (Powell, J.). 107a when it chose a 50% goal for the Earlington Heights contract. While the county’s 50% figure may have been high, it is not unreasonable under the circumstances of this case. Federal courts have a responsibility to take into ac- count the interests of state and local authorities in man- aging their own affairs consistent with the constitution. Due deference should be given to the political body charged with developing a race-conscious plan to meet local conditions. A number of considerations could have supported the percentage goal selected: a. Testimony adduced at the final hearing indicated that the county’s goal was based largely on the availabil- ity of Black contractors to do the work." The Earlington 51 The following colloquy took place between the Court and wit- ness Sergio Pereira: THE COURT: One more question. I will try to phrase it like I did with the young lady. Would you describe for me—sit back and take your time—the exact criteria that you used in arriving at the MBE 50 percent goal? THE WITNESS: The criteria, Your Honor, was submitted to us by the department, and— THE COURT: What department? THE WITNESS: The Transportation Department. THE COURT: Somebody from the Transportation Department said, quote-unquote, make it 50 percent? THE WITNESS: No. If I may find it— THE COURT: Take your time. Mr. Witness, let me explain. What I am concerned with—and maybe you can just tell me this in your own words withovt going through all of those documents, once we have a goal program, doesn’t there have to be some criteria whether the goal is ten per- cent, 20 percent, 50 percent or 97.2 percent? THE WITNESS: The criteria here that is being established is 50 percent. Each department is required to present a suggestion to the contract review committee as per the ordinance. The ordinance is established because of legislative findings which have been described here in the courtroom. The department then takes into consideration the number of dol- lars, contract dollars, that they have awarded, the number of Black 108a Heights contract was originally envisioned to have a 44% MBE goal. It was later changed to a 50% Black participation goal on the grounds that there were more Black contractors available and capable of doing the work. While this should not be the only consideration, it is certainly a legitimate concern. If there are not enough Black contractors available and capable of performing under the contract, no realistic figure can be chosen. b. A higher goal, if it does not inordinately infringe upon the rights of innocent third parties, will be more effective since it will encourage the formation of Black MBE’s and their participation in the local construction industry. ce. This community is uniquely tri-ethnic and Black res- idents are not even the largest minority group. Members of the Hispanic community make up fully 41% of the total population. Black-owned businesses have not only failed to keep pace with the White community, they have fallen behind their counterparts in other areas of the nation. An accelerated goals program could reasonably be considered necessary in arresting this apparent slide by Black contractors. contractors, prime contractors and subs that have participated in those awards, and then also look at some of the intangibles, because we do look—I look at least, and I am not going to speak to the other members of the committee, but as chairman of the committee, in order to reach my decision, I also look at some of the intangibles, where is this job, what is the purpose, the public purpose of this job, so on and so forth. All of those things put together constitute the criteria whereby the department submits a particular goal to the contract review committee. In this particular case, taking all of those things into considera- tion, and also looking at the economic impact, the highest economic impact into the black community, the availability of the subcon- tractors, the capability of those subcontractors in the different sub trades, the department reached a goal of 50 percent. 109a d. No one in this community can ignore the racial problems that currently exist. These problems have been fully documented in the reports that make up this record and that formed the basis for the county’s findings that past discriminatory practices have to some decree ad- versely affected and impaired the competitive position of Black-owned businesses so that they have not fully shared in the county’s economic growth. The county commission, the legislative body of the local government, is charged with preserving the public welfare.” It should therefore be granted considerable latitude in implementing affirma- tive action goals where the need exists in the community. e. The record shows that this contract is but one out of twenty. It is located in the Black community and is a visible symbol of Black participation in the Metrorail system and county construction contracting in general. The symbolic importance of fostering Black participation is a legitimate consideration by the county government in setting a reasonable percentage goal for Black involve- ment. f. Justice Powell’s suggested benchmark of reasonable- ness in Fullilove, 448 at 513-14, 100 S.Ct. at 2793, con- sisted of a determination that the 10% MBE under con- sideration there fell roughly halfway between the per- centage of minority contractors and the percentage of minority group members in the nation. This equation, though helpful, is not meant to be a formal per se rule to be applied regardless of circumstances. Admittedly, un- der Justice Powell’s rule of thumb a goal of roughly 9% would be permissible since only 1% of the contractors in Dade County are Black and the Black population is 17%. Any figure higher than 9% would be questionable. Under the conditions that presently exist in this county, how- ever, a numerical goal considerably higher than 9% is warranted. 52 Home Rule Charter, Art. I § 1.01; Fla.Stat.Ann. $125.01. 110a 31. It is not within the prerogative of this Court to advise the county commission as to the wisdom of its affirmative action plan. It is the political body that must be responsive to the needs of the residents of Dade County and should be accorded considerable discretion in its pol- icy making function. An affirmative action plan designed with the objective of increasing Black involvement in county contracting without unnecessarily excluding others on the basis of race does not violate the constitution when it is narrowly tailored to redress the present ef- fects of past discrimination. The county’s 50% goal is so tailored. V. The Court has ruled in part IV of this opinion that the one hundred percent set-aside procedure established by Ordinance 82-67 and applied to the Earlington Heights Station in Resolution R-1350-82 is constitutionally imper- missible. The percentage goal applied to the Earlington Heights Station has survived strict scrutiny and falls within the discretionary powers of local government. The Court has jurisdiction in this matter to enter a declaratory judgment and an injunctive decree. On the basis of the conclusions of law reached in this opinion the Court will issue: a. A declaratory judgment declaring that the defend- ants have violated the Fourteenth Amendment to the United States Constitution, Article 1, Sections 2 and 9 of the Florida Constitution, and 42 U.S.C. Section 1981 and Section 1983 by implementing and enforcing racially dis- criminatory ordinances, resolutions, and policies requiring that Black only prime contractor set-asides be established for selected Metropolitan Dade County construction proj- ects to be bid and awarded; and b. A permanent injunction permanently enjoining the Defendants, and each of them, their agents, employees, and successors from enforcing ordinances, resolutions, bid llla specifications, bid advertisements, and policies mandating that a Black only prime contractor set-aside be estab- lished for the Earlington Heights Metrorail Station, con- tract no. N336R. A declaratory judgment and permanent injunction will be issued by separate order. The Court will reserve juris- diction to consider an award to plaintiffs of costs and at- torneys fees pursuant to 42 U.S.C. § 1988 upon appro- priate post-trial motion. VI. The extent to which the government may employ race- conscious measures to rectify the continuing effects of past discrimination has become one of the most vexing social issues of our time. The ultimate objective of all affirmative action programs remains the same: to bring to an end the racial divisions that divide our country by placing minorities disadvantaged by discrimination on a relatively equal footing with the rest of society. Unfor- tunately, this cannot be done without adversely affecting others. Undeniably there are risks in affirmative action programs. In the short run they may exacerbate rather than diminish race-consciousness. They may cause resentment. They may foster the belief that some need special advantages because they cannot succeed on their merits. This court has therefore proceeded cautiously, approving affirmative action plans where their purpose and need has been appro- priately established, their goals have been reasonable in terms of the affected minority, and their tendency to reinforce race consciousness has been minimized. Local Union No. 35 v. City of Hartford, 625 F.2d 416, 421 (2nd Cir. 1980), cert. denied, 453 U.S. 913, 101 S.Ct. 3148, 69 L.Ed.2d 997 (1981). The undersigned judge has intensively wrestled with these issues over the short period this action has been 112a pending. Even if more time for reflection had been avail- able, it’s unlikely that the solution would hawe come any easier. There are no easy solutions where one individual’s right to be free from discrimination directly conflicts with another’s right to be made whole from past discrim- ination. This “catch-22” has been apply expressed by Justice Blackmun in Bakke where he observed that “[i]n order to get beyond racism, we must first take account of race. There is no other way.” Id. at 438 U.S. at 407, 98 S.Ct. at 2807 (separate opinion). The defendants are the duly elected and appointed members of this county’s government. They are to be commended for their efforts to overcome the effects of discrimination against the Black members of our com- munity. It is clear that the race-conscious measures taken by the defendants were motivated by the best of intentions and were designed to involve members of the Black community in an important part of county life. One of these measures, the set-aside, however, went fur- ther than was necessary and resulted in an unlawful preference for one racial group over another. Such a racial preference cannot be sustained. The other measure, the 50% goal, is narrowly tailored to achieve its intended purpose and is reasonable under all of the circumstances. It will be upheld. As we well know, the Constitution is not yet color- blind. The moment it was decided that our Constitution permits the government to classify individuals based solely upon their race, however well intentioned, the com- mand of the equal protection clause was muted and the courts became embroiled in deciding when discrimination is proper and under what circumstances. Someday the color of a person’s skin will be about as important in con- 53 See Plessy v. Ferguson, 163 U.S. 537, 559, 16 S.Ct. 1138, 1146, 41 L.Ed. 256 (1896) (Harlan, J. dissenting) ; Fullilove v. Klutznick, 448 U.S. 448, 522-23, 100 S.Ct. 2758, 2797-98, 65 L.Ed.2d 902 (1980) (Stewart, J. dissenting). 113a stitutional adjudication as the color of that person’s hair is today. That day cannot come too soon, but until it does, judges will face difficult constitutional decisions re- garding the propriety of benign racial discrimination. Our ultimate objective as a nation to be free from gov- ernmentally imposed racial distinctions of any kind ha; been cogently summarized by Justice Powell in Fullilove, 448 U.S. at 517, 100 S.Ct. at 2794, where he stated: In the history of this Court and this country, few questions have been more divisive than those arising from governmental action taken on the basis of race. Indeed, our own decisions played no small part in the tragic legacy of government-sanctioned discrimina- tion. See Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896); Dred Scott v. Sanford, 19 How. 393 (60 U.S.), 15 L.Ed. 691 (1857). At least since the decision in Brown v. Board of Educa- tion, 347 U.S. 488, 74 S.Ct. 686, 98 L.Ed. 873 (1954), the Court has been resolute in its dedication to the principle that the Constitution envisions a Na- tion where race is irrelevant. The time cannot come too soon when no governmental decision will be based upon immutable characteristics of pigmentation or origin. But in our quest to achieve a society free from racial classification, we cannot ignore the claims of [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2834%3A2. Public record. Not legal advice.