# Petition for Writ of Certiorari — Fulton County v. Webster > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1691%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2001 - **Citation:** 532 U.S. 942 ## Text No.—— 001174 JAN 1 0 2001 OFRAIGE OF THE CLERK IN THE , Supreme Court of the United States FULTON COUNTY, GEORGIA, ef ai., Petitioners, Vv. DANIEL WEBSTER, et ai., Respondents. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit PETITION FOR A WRIT OF CERTIORARI DEBORAH FLOYD DONALD B. VERRILLI, JR.* THE FLOYD LAW OFFICES LESLIE H. LEPOW 267 Highway 74 North ELIZABETH A. CAVANAGH Suite | JENNER & BLOCK, LLC P.O. Box 3319 601 13th Street, N.W. Peachtree City, GA 30269 Washington, D.C. 20005 (770) 486-6311 (202) 639-6000 JUNE GREEN * Counsel of Record OVERTIS HICKS BRANTLEY OFFICE OF FULTON COUNTY ATTORNEY 141 Pryor Street, S.W. Suite 4038 Atlanta, GA 30303 (404) 730-7750 WILSON-EPES PRINTING Co., INC. — (202) 789-0096 - WASHINGTON, D.C. 20001 24 2 er QUESTIONS PRESENTED 1. Whether a federal court may enjoin a local government from ever considering race, ethnicity, or gender in future government contracting, where such a broad injunction exceeds the scope of the constitutional violation it purports to remedy, extends beyond the court’s equity jurisdiction, and severely limits the discretion of a sovereign body to address and ameliorate past discrimination. 2. Whether an injunction prohibiting a_ local government from enforcing a government contracting program creating a preference for minority- and women-owned businesses is moot and must be vacated, where the program automatically expired pending appeal, and no new race- or gender-conscious program has replaced it. -ij- LIST OF PARTIES Pursuant to Rule 14.1(b), the following list identifies all of the parties to the proceeding in the United States Court of Appeals for the Eleventh Circuit whose judgment is sought to be reviewed: Fulton County, Georgia, \ Appellant/Cross-Appellee Below. Michael Cooper, Appellant/Cross-Appellee Below. Daniel Webster, Appellee/Cross-Appellant Below. Peggy Webster, Appellee/Cross-Appellant Below. Webster Greenthumb Co., Appellee/Cross-Appellant Below. Kelly Goff, Appellee/Cross-Appellant Below. Pursuant to Rule 29.6, petitioners state that the named petitioners do not have any corporate parent, subsidiary, or affiliate that is publicly held. TABLE OF CONTENTS QUESTIONS PRESENTED ................. See Meee Nets oe beck Jed BEC Ee TABLE OF AUTHORITIES .........cecccees PETITION FOR A WRIT OF CERTIORARI .... nn Ss hb bes bes nas 046 4.00as06 Ee cue crcabetabeasueene couse CONSTITUTIONAL PROVISIONS INVOLVED SIATEMENE OF THE CASE ..........2005. A. I OK ae valiw’s doodle dea s B. Proceedings Below ............... REASONS FOR GRANTING THE WRIT ...... I. THE ELEVENTH CIRCUIT’S DECISION UPHOLDING AN INJUNCTION THAT PROHIBITS FULTON COUNTY FROM EVER CONSIDERING RACE, ETHNICITY, OR GENDER IN FUTURE COUNTY CONTRACTING CONFLICTS WITH THE DECISIONS OF OTHER CIRCUITS, AND IMPROPERLY LIMITS THE DISCRETION *seeeeee “es e** @ @ ee 8 6's « “see ee © OF A LOCAL GOVERNMENT. ................ ll -iv- Il. THE DECISIONS OF THIS COURT AND OTHER CIRCUITS MAKE CLEAR THAT BECAUSE THE CHALLENGED PROGRAM HAS EXPIRED AND NO NEW RACE- OR GENDER-CONSCIOUS PROGRAM HAS REPLACED IT, EVEN A PROPERLY TAILORED INJUNCTION WOULD BE Pe boa sa hobca cs cb ikee weak ona pasanie 20 GREE 4c cb doe bkceebe adwadeseinseneainn 27 APPENDIX A Webster v. Fulton County, Georgia, No. 99-12216 (11th Cir. July 19, 2000) ........... la APPENDIX B Webster v. Fulton County, Georgia, No. CIV. A. 196-CV-2399-TWT ee eer errr ys Perry e 2a APPENDIX C Webster v. Fulton County, Georgia, No. Civ. A 1:96CV2399TWT GERD. Ga. FU OS TGR eek ec eed ce SH 65a APPENDIX D Webster Greenthumb Co. v. Fulton County, Georgia, No. Civ. A. 1:96CV2399-TWT GUD. Ga. Gogh. 06, SREP as oe ed We a8 ies 113a APPENDIX E Webster v. Fulton County, Georgia, No. 99-12216-CC (11th Cir. Oct. 12, 2000) (Order denying petition for rehearing and PEORIUNE GI DUNES. a.0:9:0 t's ce Maa ea eee ke 204a -Vi- TABLE OF AUTHORITIES CASES Adarand Constructors, Inc. v. Slater, FO MR DUUEOUEE ELo vac cdcedWevissccasas 22, 23 Allard Enterprises, Inc. v. Advanced Programming Resources, Inc., 546 FSG DOO Cee CAE, BSG c cc ccccccccccscccces 18 Arizonans for Official English v. Arizona, Fae Wa STD 66.05 can wevnkasde naka knees 20 Association of Community v. Organizations for Reform Now (ACORN) v. Edgar, FO FS 198 CHG TRSGD co ccccccdccescecece 16, 18 Associated General Contractors of Connecticut, Inc. v. City of New Haven, 41 F.3d 62 GOO Get DU: dn ciknlth Mil osdeeaenekews passim Associated General Contractors of America v. City of Columbus, 172 F.3d 411 (6th Cir. SOU i vc nccesnasiveneuctcbceusesuhinel passim Burke v. Barnes, 479 U.S. 361 (1987) ............ passim Chicago & Northwestern v. Transport Co. v. Railway Labor Executives’ Association, SUR FOG BOG CH CAD GE 6 i ccccdccccccceses \. 18 City of Mesquite v. Aladdin's Castle, Inc., Gp Ge eT ED oun i schddhucbhaacesexs 21, 22, 23 City of Richmond v. J.A. Croson Co., GE Uh GO IG Fak cnn cksencceccas 9, 15, 16, 17 In re Davis, 899 F.2d 1136 (11th Cir. 1990)............ 17 -vii- TABLE OF AUTHORITIES - continued Diffenderfer v. Central Baptist Church of Miami, Florida, Inc., 404 U.S. 412 GOED od wana vad waeenpns Eedcwen'eendsees 21, 23 FDIC v. Verex Assurance, Inc., 3 F.3d 391 PGE MI Recisiseatastccasecusasesetens 19 Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., Fae OR BEF CE Co aE POSEN ida vet he di 22 Gibson v. Firestone, 741 F.2d 1268 (11th Cir. SO ci Save nve ceed scabies cbtesensacessdac 12 Harrison & Burrowes Bridge Constructors, Inc. v. Cuomo, 981 F.2d 50 (2d Cir. 1992) ..... 9, 11, 15, 26 Hayes v. North State Law Enforcement Officers Association, 10 F.3d 207 (4th Cir. 1993) .......... 12 Jones v. Temmer, 57 F.3d 921 (10th Cir. 1995) ...... 11, 26 Kentucky Right of Life, Inc. v. Terry, 108 F.3d 637 SN DUDA 4bbs nid cectewaedcwoenssecés 11, 26 Maryland Highways Contractors Association, Inc. v. Maryland, 933 F.2d 1246 (4th Cir. DT anhttwédhw uh olotsdustesanabedess chic 11, 26 Narey v. Dean, 32 F.3d 1521 (11th Cir. 1994) .......... 19 National Black Police Association v. District of Columbia, 108 F.3d 346 (D.C. Cir. 1997)....... 11, 26 Native Village of Noatak v. Blatchford, 38 F.3d 1505 (9th Cir. 1994) ................. 11, 26 -Vill- TABLE OF AUTHORITIES - continued Northeastern Florida Chapter of the Associated General Contractors of America v. City of Jacksonville, 508 U.S. 656 (1993) ............ 21, 23 Singleton v. Wulff, 428 U.S. 106 FP er aaa. 19 Toussaint v. McCarthy, 801 F.2d 1080 (9th Cir. WE trsakdtessividevariciicn. 12 United States Department of the Treasury, Bureau of Alcohol, Tobacco & Firearms v. Galioto, 477 U.S. 556 (1986) .............. 11, 25 United States v. Concentrated Phosphate Export Ass'n, Inc., 393 U.S. 199 ele des oe a 22 United States v. WT. Grant Co., 345 U.S. 629 EL Mesbaccdealccssscacae 22 Waldman Publisher Corp. v. Landoll, Inc., el | I A na a: 12 Younger v. Harris, 401 U.S. 37 | Ey ee i ied 17 i) Re ee ee wy en eS 1 Geen G CN 6 oho Fhe WARS ee jew 24 Sy ge ih RUE pail ICO a ae 2 OM, Cops, Gan, WIV, 68 igo ok sisvkhcss enh os, 2 PETITION FOR A WRIT OF CERTIORARI Fulton County, Georgia (“Fulton County” or “the County”), through undersigned counsel, respectfully requests that this Court issue a writ of certiorari to review the judgment of the United States Court of Appeals for the Eleventh Circuit affirming the decision of the United States District Court for the Northern District of Georgia permanently enjoining the County from using racial, ethnic, or gender participation goals in evaluating or awarding County contracts. OPINIONS BELOW The opinion of the Court of Appeals is reported at 218 F.3d 1267, and is reprinted at Pet. App. la. The opinion of the district court entering final judgment with respect to the constitutionality of the challenged program is reported at 51 F. Supp. 2d 1354, and is reprinted at Pet. App. 2a-64a. The opinion of the district court on cross-motions for summary judgment is reported at 44 F. Supp. 2d 1359, and is reprinted at Pet. App. 65a-112a. The opinion of the district court with respect to attorneys’ fees and costs is reported at 112 F. Supp. 2d 1339, and is reprinted at Pet. App. 113a-203a. The Court of Appeals’ order denying Fulton County’s petition for rehearing and suggestion for rehearing en banc, which will be published inatableat _F.3d___, is reprinted at Pet. App. 204a-205a. JURISDICTION The judgment of the Court of Appeals was entered on July 19, 2000. See Pet. App. la. A timely petition for rehearing and suggestion for rehearing en banc was denied on October 12, 2000. See Pet. App. 204a-205a. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1). i. CONSTITUTIONAL PROVISIONS INVOLVED This case involves the following constitutional provisions, the pertinent portions of which are set forth below: No State shall . .. deny to anv person within its jurisdiction the equal protection of the laws. U.S. Const. amend. XIV, § 1. The Judicial Power shall extend to all Cases . . . [or] Controversies ... . U.S. Const. art. II, § 2. STATEMENT OF THE CASE This petition seeks review of an Eleventh Circuit decision upholding an injunction that forbids Fulton County, Georgia, from ever considering race, ethnicity, or gender in connection with future County contracting. The injunction thus bars the County not only from enforcing the affirmative action program that the district court actually considered and struck down as unconstitutional — a program that automatically expired during the appeal in this case — but also from adopting any new affirmative action program based on an updated factual predicate. The Eleventh Circuit’s decision upholding this sweeping injunction directly conflicts with a recent decision of the Sixth Circuit, which held that once an existing affirmative action program has been declared unconstitutional and its enforcement enjoined, a broader injunction against future affirmative action programs improperly exceeds the scope of the constitutional «fs violation it purports to remedy and extends beyond the court’s equity jurisdiction. The decision below also conflicts with Second Circuit decisions recognizing that the constitutionality of an affirmative action plan depends on the factual justification offered for that plan, leaving local governments free to enact new plans supported by new data even when the factual justification for a previous plan was inadequate. Review is warranted to resolve these conflicts and to address the injunction’s unlawful and unwarranted intrusion upon the County’s authority to adopt appropriately narrow remedial legislation if a record is assembled that avoids the evidentiary deficiencies identified by the district court. Moreover, the Eleventh Circuit’s failure even to consider this issue in its decision was plainly erroneous, and provides an additional reason for granting review. Review is also warranted because even a properly tailored injunction — limited to enjoining enforcement of the plan at issue in this case — could not stand. This Court and other circuits have held that when legislation expires or is repealed or amended, any issues arising from its application are moot and cannot be addressed by a federal court consistent with Article Ill. Because the challenged affirmative action program expired automatically pending appeal, and no new race- or gender-conscious program has replaced it, any injunction against enforcement of that program would be moot and would have to be vacated. A. Background This case arises from Fulton County’s efforts to remedy a long history of discrimination against minority- and female- owned businesses in the County. In pursuit of that goal, the Fulton County Board of Commissioners (the “Board”) adopted -4- its first minority business enterprise program in 1979. Pet. App. 3a. That program was continued by Board resolutions in 1984 and 1987. See id. Additionally, from 1989 to 1993, Fulton County instituted a program of race- and gender-neutral measures designed to increase the pool of bidders in the County’s contracting. During this same period, the County also commissioned studies to determine whether discrimination was present in the relevant markets. Those studies showed gross underrepresentation of minority contractors, as well as discrimination against female business owners. The County also assembled an extensive record of anecdotal discrimination, which revealed pervasive discrimination against minority and female business enterprises. The Board conducted public hearings during 1992 to consider these studies, together with additional verbal and written testimony from numerous witnesses. See Pet. App. 4a-5Sa. On the basis of the record compiled at those hearings, as well as the studies previously commissioned, Fulton County adopted an affirmative action contracting program in 1992, and amended that program to adopt the 1994 Minority and Female Business Enterprise (“MFBE”’) Program so as “‘to alleviate the effects of past and present discrimination against minority and female business enterprises and to enhance contracting opportunities for minority and female businesses.” Pet. App. 6a. Instead of fixed quotas, the 1994 MFBE Program established annual participation goals with respect to African- American businesses, Hispanic businesses, Asian-American businesses, Native American businesses, and female businesses. See Pet. App. 7a. The Program also continued the previously adopted race- and gender-neutral business opportunity measures. See Pet. App. 11la-12a. Bl By its terms, the Program was to expire automatically after five years, unless the Board renewed it. See Pet. App. 6a. In fact, the Program did expire on September 16, 1999 — while this case was on appeal to the Eleventh Circuit. See infra. No race- or gender-conscious program has replaced it. B. Proceedings Below Plaintiffs Daniel Webster, Peggy Webster, and the Webster Green Thumb Company (“Green Thumb”) filed suit in 1996 in the United States District Court for the Northern District of Georgia, challenging the constitutionality of Fulton County’s 1994 MFBE Program under 42 U.S.C. §§ 1981 and 1983 and the Equal Protection Clause of the Fourteenth Amendment. On cross-motions for summary judgment, the district court issued an order on February 12, 1999, denying Green Thumb’s motion and granting in part the County’s motion. See Pet. App. 65a. After a six-day bench trial that began on May 11, 1999, and addressed only the constitutionality of the 1994 MFBE Program, the court issued a final judgment that Green Thumb had standing to challenge the Program (the plaintiffs conceded that the Websters lacked individual standing), and that the Program violated the Equal Protection Clause. See Pet. App. 15a, 63a. Specifically, the court concluded that the County had not established an adequate “evidentiary foundation” for the Program, and that the Program was not narrowly tailored to meet a compelling governmental interest. Pet. App. 63a. The court based its finding primarily on its conclusion that the County had not itself discriminated in awarding contracts and could not disprove race-neutral explanations for gross disparities in the rates at which minority businesses obtained County contracts. In so holding, the court gave no weight to 6- the County’s unrebutted evidence of pervasive discrimination in the private market — discrimination that the County was obligated to remedy. The district court also entered an injunction permanently enjoining the County “from using racial, ethnic or gender participation goals in accepting or rejecting bids, determining whether bidders are responsive and responsible bidders and in the awarding of Fulton County contracts.” Pet. App. 63a. The broad scope of that injunction was at odds with the representations of counsel and the evidence presented at trial. Counsel for both Green Thumb and the County emphasized that the plaintiffs sought an injunction against the 1994 MFBE Program only. Counsel for Green Thumb asked only for an injunction against “continuing the 1994 MFBE Program.” May 24, 1999 Trial Tr. 1014 (emphasis added); see also id. 1079-80 (“The evidence is clear that this program cannot withstand constitutional muster, and we ask your Honor to enjoin i# immediately.”) (emphasis added). In his opening statement, counsel for the County likewise explained: “/T]he plaintiffs are seeking only injunctive relief prospectively for this program which, as the evidence will show, is scheduled to sunset in September of 1999, a few months from now.” May 11, 1999 Trial Tr. 29-30 (emphasis added). Similarly, in closing, counsel contended that “[p]laintiffs have not met their burden to obtain an injunction enjoining the remaining three months of this five-year program.” May 24, 1999 Trial Tr. 1042 (emphasis added). At no time before the entry of final judgment did the district court suggest that it might enter a broader injunction. To the contrary, the court made clear that it planned to evaluate only the 1994 MFBE Program and its constitutionality. See Pet. App. 2a (describing the trial as involving only “the issue of i. whether Defendant Fulton County’s 1994 Minority and Female Business Enterprise (“MFBE”) Program is in violation of the Equal Protection Clause”). Moreover, at the outset of the trial, the court noted that “the implementation of the Fulton County MFBE Program is not before the Court,” although “there may be aspects of the implementation of the program which are so intertwined with the constitutionality of the program itself that I don’t want to . . . issue any legal rulings that are going to affect the introduction of evidence.” May 11, 1999 Trial Tr. 3- 4 (emphasis added). The district court nevertheless entered an injunction that not only barred enforcement of the 1994 MFBE Program, but also prohibited Fulton County from ever considering race, ethnicity, or gender in awarding contracts. Because the 1994 MFBE Program was still in effect at the time of the district court’s ruling, the County did not argue that a properly tailored injunction would be moot, and the district court did not address mootness in its opinion. The Program automatically expired on September 16, 1999, and has not been replaced. | The County appealed the district court’s final judgment to the United States Court of Appeals for the Eleventh Circuit, arguing that: (1) the injunction should be vacated because it exceeded the scope of the constitutional violation it purported to remedy, and an appropriately narrowed injunction would be moot; (2) the district court erred in finding that the County violated the Equal Protection Clause; and (3) Green Thumb’s chalienge to the 1994 MFBE Program should be rejected for lack of standing.' On July 19, 2000, an Eleventh Circuit panel ‘Green Thumb cross-appealed, challenging (1) an interlocutory order denying plaintiffs’ motion to contact prospective class members, and (2) the dismissal of plaintiff Kelly Goff on standing grounds. The cross-appeal was me issued a decision affirming on the basis of the district court’s opinion. See Pet. App. la. Thus, the panel upheld the district court’s injunction permanently prohibiting Fulton County from using racial, ethnic, or gender participation goals in evaluating or awarding County contracts. In a footnote, the panel declined to address the County’s challenge to the scope of the injunction on the ground that “(t]he argument was not presented to the district court; rather, it was raised for the first time on appeal.” Pet. App. la. Fulton County’s petition for rehearing and suggestion for rehearing en banc was denied on October 12, 2000. See Pet. App. 20Sa. REASONS FOR GRANTING THE WRIT This case presents two important questions. First, may a federal court issue an injunction that forbids a local government from ever considering race, ethnicity, or gender in future government contracting, where such a broad injunction exceeds the scope of the constitutional violation it purports to remedy, extends beyond the court’s equity jurisdiction, and severely limits the discretion of a sovereign body to address and ameliorate past discrimination. Second, whether an injunction prohibiting a local government from enforcing a government contracting program creating a preference for minority- and women-owned businesses is moot and must be vacated, where the program automatically expired pending appeal, and no new race- or gender-conscious program has replaced it. Each of these questions warrants review. See S. Ct. Rule 10. The Eleventh Circuit’s decision upholding the injunction issued by the district court directly conflicts with decisions of other circuit courts. The Sixth Circuit vacated portions of an dismissed in its entirety. 9- injunction virtually identical to the one at issue here, on the ground that once an existing affirmative action program has been declared unconstitutional and its enforcement enjoined, a broader injunction against future affirmative action programs improperly exceeds the scope of the violation it purports to remedy. See Associated Gen. Contractors of Am. v. City of Columbus, 172 F.3d 411, 418 (6th Cir. 1999). The Second Circuit has similarly recognized that the constitutionality of an affirmative action plan depends on the statistical data supporting that plan, so that local governments are free te enact new plans supported by new data even if the factual justification for a previous plan was insufficient. See Associated Gen. Contractors of Conn., Inc. v. City of New Haven, 41 F.3d 62, 66 (2d Cir. 1994); Harrison & Burrowes Bridge Constructors, Inc. v. Cuomo, 981 F.2d 50, 60 (2d Cir. 1992); see also City of Richmond v. J.A. Croson Co., 488 U.S. 469, 509-10 (1989). This Court’s review is necessary to reconcile these decisions with the Eleventh Circuit’s order upholding a grossly overbroad injunction against Fulton County. More fundamentally, this Court should review the important issue presented here because as a result of the decisions below, Fulton County — perhaps alone among sovereign jurisdictions in the United States — is under an injunction that permanently forbids it, upon pain of contempt, from considering race, ethnicity, or gender in future County contracting. Such an injunction impreperiy intrudes upon the County’s authority to adopt appropriately narrow remedial legislation if a record is assembled that addresses the evidentiary deficiencies identified by the district court. See, e.g., City of Columbus, 172 F.3d at 415. Indeed, the injunction effectively gives the district court an unprecedented form of -10- preclearance authority over any such legislation the County might seek to adopt in the future. The Eleventh Circuit plainly erred when it declined to address this issue — which went to the jurisdiction of the district court — on the ground that it was raised for the first time on appeal. The Court of Appeals was obligated to satisfy itself of its own jurisdiction and that of the district court, even if the issue was not previously raised. Moreover, other circuits have correctly held that a federal court must refuse to enter a defective injunction even if no party objects. The Eleventh Circuit also ignored precedents holding that it is proper for appellate courts to consider an argument not presented below where the argument presents a significant question of great public concern, the proper resolution of the issue is beyond reasonable doubt, or a party had no opportunity to raise the issue below. Fulton County’s overbreadth argument easily met these conditions. Accordingly, the Eleventh Circuit improperly failed to address that argument, and this Court’s review is necessary to address that failure. Finally, as to the second question presented, allowing even a properly tailored injunction — limited to enjoining the 1994 MFBE Program — would contravene decisions of this Court and other circuits. This Court has held that a challenge to the validity of a statute that has expired becomes moot when the statute expires by its own terms. Burke v. Barnes, 479 U.S. 361 (1987). Because the 1994 MFBE Program expired pending appeal, any issues arising from its application are therefore moot. A decision of the Second Circuit also requires a conclusion that even a properly tailored injunction would be moot because the challenged contracting program has expired. City of New Haven, 41 F.3d 62. Moreover, in light of Burke’s teaching that a challenge to the validity of a statute that has DR cig FRY, > oO -11- expired should be treated no differently from a challenge to a statute that has been repealed, see 479 U.S. at 363, any decision upholding an injunction against the expired 1994 MFBE Program would conflict with the decisions of this Court and six other circuits that have held that a challenge to a statute is moot once the statute is repealed or amended. See United States Dep't of the Treasury, Bureau of Alcohol, Tobacco & Firearms v. Galioto, 477 U.S. 556, 559-60 (1986); Kentucky Right of Life, Inc. v. Terry, 108 F.3d 637, 644-45 (6th Cir. 1997); National Black Police Ass'n v. District of Columbia, 108 F.3d 346, 347-49 (D.C. Cir. 1997); Jones v. Temmer, 57 F.3d 921, 922 (10th Cir. 1995); Native Village of Noatak v. Blatchford, 38 F.3d 1505, 1509-11 (9th Cir. 1994); Harrison & Burrowes Bridge Constructors, Inc., 981 F.2d at 58-61; Maryland Highways Contractors Ass'n, Inc. v. Maryland, 933 F.2d 1246, 1247-48 (4th Cir. 1991). I. THE ELEVENTH CIRCUIT’S DECISION UPHOLDING AN INJUNCTION THAT PROHIBITS FULTON COUNTY FROM EVER CONSIDERING RACE, ETHNICITY, OR GENDER IN FUTURE COUNTY CONTRACTING CONFLICTS WITH THE DECISIONS OF OTHER CIRCUITS, AND IMPROPERLY LIMITS THE DISCRETION OF A LOCAL GOVERNMENT. The decision of the Eleventh Circuit upholding an injunction that permanently forbids a local government from considering race, ethnicity, or gender in future government contracting squarely conflicts with the decisions of several other circuits. Unlike the Eleventh Circuit, those circuits have recognized that (1) once an existing affirmative action program has been declared unconstitutional and its enforcement enjoined, a broader injunction against future affirmative action 14. programs improperly exceeds the scope of the constitutional violation it purports to remedy; and (2) the constitutionality of an affirmative action plan depends on the factual justification offered for that plan, so that local governments are free to enact new plans supported by new data even when the factual justification for a previous plan was insufficient. This Court’s prompt review is necessary to resolve this conflict. The issue presented is an important one — by effectively requiring Fulton County to preclear any affirmative action plan with a federal court, the Eleventh Circuit’s decision severely threatens the discretion invested in local governments, which are charged with the duty to address discrimination. Finally, the Eleventh Circuit’s failure even to consider Fulton County’s challenge to the scope of the injunction was plainly erroneous and only increases the importance of review in this case. 1. First, the decision below conflicts with a recent decision of the Sixth Circuit, which held that an injunction virtually identical to the one at issue here exceeded the scope of the constitutional violation it purported to remedy, and thereby inappropriately limited city officials’ discretion. See City of Columbus, 172 F.3d at 418. As a general matter, of course, “injunctive relief must be tailored to fit the nature and extent of the established violation.” Gibson v. Firestone, 741 F.2d 1268, 1273 (11th Cir. 1984); see also Waldman Publisher Corp. v. Landoll, Inc., 43 F.3d 775, 785 (2d Cir. 1994); Hayes v. North State Law Enforcement Officers Ass'n, 10 F.3d 207, 217 (4th Cir. 1993). Courts have not hesitated to set aside injunctions that “impose unnecessary burdens on lawful activity.” Waldman, 43 F.3d at 785. This is particularly true of injunctive relief against state and local officials, whose discretion must not be unnecessarily constrained by federal courts. See Toussaint v. McCarthy, 801 F.2d 1080, 1086-87 (9th Cir. 1986). Or a ee ar eS Dee ae we ee -13- In City of Columbus, the Sixth Circuit applied these principles and vacated an injunction to the extent that it prohibited not only an existing minority- and female-owned without court approval. See 172 F.3d at 415. The Sixth Circuit held that a district court lacks jurisdiction to enter such a broad injunction. See id. at 415-18. Although the Sixth Circuit acknowledged that Article [I] equity jurisdiction might authorize a federal court, once it has found a constitutional violation by a governmental entity, to administer expansive remedial orders, see id. at 417, it emphasized that “[t}his use of equitable power . . . has been confined to those circumstances in which the . . . mere cessation of the particular activity or method of operation will not serve to remedy the [constitutional] violation.” Jd. Once the existing set-aside program had been declared unconstitutional and its enforcement enjoined, however, the city no longer had any set- aside program. See id. at 419. In the absence of any condition violating the Constitution, the trial court’s order could not be characterized as a remedial order within its equity jurisdiction. Id.; see also id. at 418 (“‘federal-court decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate the Constitution or does not flow from such a violation”) (quoting Milliken v. Bradley, 433 U.S. 267, 282 (1977)). The Sixth Circuit went on to observe that the “plaintiffs’ real grievance is not simply with the particular set-aside ordinance; their real contention is that the City cannot, consistent with the requirements of Croson, adopt any set-aside program.” Jd. at 415 (emphasis added) (citing Croson, 488 U.S. 469). But whatever the “efficiency” of such an approach, the court held that it is “wrong.” /d. The court emphasized that federai judges may not “‘assume to control the discretion with -14- which municipal assemblies are invested when deliberating upon the adoption or rejection of ordinances proposed for their adoption. The passage of ordinances by such bodies are legislative acts, which a court of equity will not enjoin.”” Jd. (quoting New Orleans Water Works Co. v. City of New Orleans, 164 U.S. 471, 481 (1896)). The injunction at issue improperly limited municipal officials’ discretion by prohibiting the local government from adopting a new program, and was therefore vacated. By barring all future consideration of race, ethnicity, or gender in Fulton County’s contracting program, and thus permanently forbidding the adoption of any new programs authorizing such preferences (without even providing for the possibility of court approval of a new program, as in City of Columbus), the injunction in this case effects an even more severe result than the injunction vacated by the Sixth Circuit. The only issue considered at trial and resolved in the district court’s decision in this case was “whether Defendant Fulton County’s 1994 Minority and Female Business Enterprise (“MFBE’) Program is in violation of the Equal Protection Clause.” Pet. App. 2a. Thus, enjoining the 1994 MFBE Program would have eliminated the only constitutional violation found here. But the injunction issued by the district court and upheld by the Eleventh Circuit goes much further, permanently prohibiting all future County programs that attempt to ameliorate past discrimination and effectively requiring Fulton County to preclear any future MFBE program with a federal court. Under the Sixth Circuit’s decision in City of Columbus, such a broad prohibition is not a remedial order within the court’s Article III equity jurisdiction. See 172 F.3d at 417. This Court’s review of the Eleventh Circuit’s decision is necessary to reconcile these directly conflicting rulings. -15- 2. The Eleventh Circuit’s decision also conflicts with decisions of the Second Circuit recognizing that the constitutionality of an affirmative action plan depends.on the statistical data supporting that plan, leaving local governments free to enact new plans supported by new data even if the factual justification for a previous plan was insufficient. In Associated General Contractors of Connecticut, Inc. v. City of New Haven, the Second Circuit stated that “[iJn the context of race-based set-asides, Croson makes clear that the constitutionality of any municipal plan is inextricably linked to its factual justification.” 41 F.3d at 66; see Croson, 488 U.S. at 509-10. The Second Circuit went on to hold that the expiration of the challenged set-aside program mooted the case, since the City of New Haven had neither repealed its plan to avoid an adverse judgment nor reenacted the same or a similar plan. 41 F.3d at 66.2 Moreover, any new plan enacted by the City of New Haven presumably would “be supported by updated statistical data and therefore be subject to attack and justification on different and additional grounds.” /d.; see also id. (“the Supreme Court’s decision in Croson makes it unreasonable to expect that [the expired program] will be reenacted without an updated factual predicate”). Similarly, in Harrison & Burrowes Bridge Constructors, Inc., 981 F.2d at 60, the Second Circuit emphasized that “whether [the state’s new minority business] program . . . will survive scrutiny under Croson cannot be decided until the bases for adopting particular set-asides are known and the state proceeds to enforce them.” By upholding an injunction that prohibited Fulton County not only from enforcing the existing 1994 MFBE Program, but also from adopting a new plan based on new data, the Eleventh ?As discussed below, the same is true in this case. See infra Part II. -16- Circuit flouted these principles. The relevant inquiry under Croson was whether Fulton County could demonstrate a “strong basis in evidence” to support the 1994 MFBE Program. Pet. App. 17a. The district court concluded that the County had failed to carry this burden. See, e.g., Pet. App. 51a (evidence “fails to provide a strong basis in evidence for the 1994 MFBE Program”); Pet. App. 54a-55a (same). Under the Second Circuit’s decisions — indeed, under any reasonable analysis — that conclusion could not prevent Fulton County from undertaking additional studies and asserting in the future, based on new factual evidence, that a “strong basis in evidence exists” for a revised program. But the trial court’s injunction precludes Fulton County from doing so, even though the County is obligated to address discrimination it determines exists. This Court’s review is plainly warranted to reconcile these conflicting decisions. 3. Tne issue presented here is an important one with far-reaching implications. The injunction upheld by the Eleventh Circuit severely threatens the legislative discretion invested in local governments — which are charged with the duty to address discrimination — to craft remedial schemes and adopt contracting programs that do not perpetuate discriminatory patterns. See generally Croson, 488 U.S. at 509 (“Nothing we say today precludes a state or local entity from taking action to rectify the effects of identified discrimination within its jurisdiction.”). That injunction effectively requires Fulton County to preclear any affirmative action plan with a federal court, in violation of the principle that federal courts may not interfere with, or restrain in advance, legislative activity by municipal bodies. See City of Columbus, 172 F.3d at 415-18; see also Association of Cmty. Orgs. for Reform Now (ACORN) v. Edgar, 56 F.3d 791, 798 (7th Cir. 1995) (vacating portion of injunction that “intru{ded] upon the operations of 19. state government” and thereby “failed to exhibit an adequate sensitivity to the principle of federalism”); of. Younger v. Harris, 401 U.S. 37, 53 (1971) (“it can seldom be appropriate for these courts to exercise any such power of prior approval or veto over the legislative process”). And it does so despite Croson’s lesson “that the constitutionality of any municipal plan is inextricably linked to its factual justification.” City of New Haven, 41 F.3d at 66; see Croson, 488 U.S. at 509-10. This Court’s review of this issue is necessary to protect sovereign bodies from such unjustified and open-ended interference from federal courts, and to provide guidance to local governments seeking to remedy discrimination without running afoul of the law. a Finally, the Eleventh Circuit erred when it declined even to address these issues on the ground that Fulton County’s overbreadth argument had been raised for the first time on appeal. See Pet. App. la. That argument goes to the jurisdiction of the district court. See City of Columbus, 172 F.3d at 415-18 (holding that a district court lacks jurisdiction to enter an injunction permanently barring all use of racial or gender goals in connection with awarding contracts). Because an appellate court must satisfy itself not only of its own jurisdiction but that of the lower courts, even if the issue has never been raised previously, see, e.g., In re Davis, 899 F.2d 1136, 1138 n.5 (ilth Cir. 1990), the Eleventh Circuit was obligated to address Fulton County’s pation challenge to the scope of the injunction. Indeed, an injunction as brocd as that issued by the district court has such sweeping consequences that, as the Seventh Circuit has held, “a district judge has not only the power but also the duty to refuse to enter a defective injunction even if -18- neither party objects.” Chicago & Nw. Transp. Co. v. Railway Labor Executives’ Ass’n, 908 F.2d 144, 149 (7th Cir. 1990). Such an injunction “imposes burdens on the court that issues it and potentially affects the rights of third parties; on both grounds the court has a duty independent of the desires of the parties to assure that the injunction is proper.” J/d.; see also ACORN, 56 F.3d at 797. Accordingly, review of the scope of a far-reaching injunction is necessary and appropriate, even where no challenge to its breadth was raised in the district court. See Allard Enters., Inc. v. Advanced Programming Res., Inc., 146 F.3d 350, 360 (6th Cir. 1998) (reviewing challenge to nationwide geographic scope of injunction although issue was not raised below); see also ACORN, 56 F.3d at 796-98 (vacating portion of overbroad injunction despite parties’ failure to raise issue). The impact of the injunction in this case is especially severe. The injunction precludes a municipal government from ever taking any action to eradicate the effects of past discrimination, and places control over a government’s legislative and policymaking functions in the hands of a federal court — a result that the Sixth Circuit has deplored. City of Columbus, 172 F.3d at 415; see also ACORN, 56 F.3d at 798 (vacating portion of injunction that “intru[ded] upon the operations of state government” and thereby “failed to exhibit an adequate sensitivity to the principle of federalism”). Moreover, it concerns a matter of substantial public concern: the amelioration of past discrimination. Thus, the Eleventh Circuit’s failure to address this issue was plainly erroneous. That failure also conflicts with controlling precedent of this Court, which has held that a federal appellate court has full authority to consider issues not presented to the district court where the proper resolution is beyond any doubt or where -19- “‘injustice might otherwise result.”” Singleton v. Wulff, 428 U.S. 106, 121 (1976) (quoting Hormel v. Helvering, 312 U.S. 552, 557 (1941)).? For the reasons discussed above, see supra at 16-17, whether or not an injunction may prevent a local government from adopting any race- or gender-conscious contracting measures without first clearing those measures with a federal court is plainly a significant issue of great public concern. And the resolution of that issue is beyond all doubt: The injunction in this case is overbroad and must be struck down. See supra at 12-16. Finally, the County had no meaningful opportunity or reason to challenge the scope of the injunction in the district court. See Fed. R. Civ. P. 46 (“{I]jf a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice the party.””). The parties presumed throughout the district court proceedings that any injunction would be limited to the 1994 MFBE Program, and the court gave no indication before entering final judgment that it would deviate from that assumption — to the contrary, the court confirmed the parties’ presumption. See supra at 6-7. Thus, Fulton County had no opportunity or reason to argue that an injunction prohibiting it from ever using ethnic or gender *Similarly, the Eleventh Circuit has held that an appellate court may consider an issue presented for the first time when “the appellant had no opportunity to raise it below” or when “the issue presents significant questions of great public concern.” FDIC v. Verex Assurance, Inc., 3 F.3d 391, 395 (11th Cir. 1993); see also Narey v. Dean, 32 F.3d 1521, 1526-27 (11th Cir. 1994) (exercising discretion to consider issue on appeal that was not raised below). In the instant case, the Eleventh Circuit inexplicably ignored these precedents. -20- participation goals in awarding contracts would be impermissibly overbroad.‘ Accordingly, the Eleventh Circuit’s refusal to address the overbreadth issue denied the County any consideration by any court of its argument that an injunction purporting to bar more than the 1994 MFBE Program was overbroad. For this additional reason, this Court should review the judgment below and address the merits of the County’s overbreadth argument. II. THE DECISIONS OF THIS COURT AND OTHER CIRCUITS MAKE CLEAR THAT BECAUSE THE CHALLENGED PROGRAM HAS EXPIRED AND | NO NEW RACE- OR GENDER-CONSCIOUS PROGRAM HAS REPLACED IT, EVEN A PROPERLY TAILORED INJUNCTION WOULD BE MOOT. The decisions of this Court and other circuits make clear that even a properly tailored injunction — limited to the 1994 MFBE Program — would be moot. The 1994 MFBE Program expired automatically in September 1999. See supra at 5. Although the Board was authorized to extend it for five years if a new disparity study showed a continuing need for it, no such study was done, and the Board did not renew the Program. Id. No race- or gender-conscious contracting plan has replaced the Program. Therefore, Green Thumb’s claims for injunctive and declaratory relief are plainly moot, and the Eleventh Circuit should have vacated the injunction. See Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997) (“{A]Jn actual ‘Nor was the County required to present such an argument to the district court in a post-judgment motion; the injunction was part of a final judgment that could not have been more clear. Ste controversy must be extant at all stages of review.”) (quotation and citation omitted). The Eleventh Circuit’s failure to do so merits this Court’s review. 1. Allowing even a properly tailored. injunction to stand in this case would contravene this Court’s decision in Burke v. Barnes, 479 U.S. 361. In Burke, thirty-three individual members of the House of Representatives filed suit challenging the President’s action in seeking to pocket-veto a bill that had been passed by both the House and the Senate. Jd. at 362. After the court of appeals entered judgment that the bill had become a law notwithstanding the President’s attempt to pocket-veto it, but before this Court decided its review of the case, the bill expired by its own terms. /d. at 363. This Court explained that, under Diffenderfer v. Central Baptist Church of Miami, Florida, Inc., 404 U.S. 412, 414-15 (1972) (per curiam), declaratory and injunctive relief is “inappropriate” where a challenged statute has been repealed. The Court then held: “We see no reason to treat a challenge to the validity of a statute that has expired any differently from a challenge to the validity of a statute that has been repealed, and accordingly hold that any issues concerning whether H.R. 4042 became a law were mooted when that bill expired by its own terms.” Burke, 479 U.S. at 363. Similarly, because the 1994 MFBE Program expired automatically, any issues arising from its application — including the validity of an injunction against enforcement of that Program — are now moot. This Court has not recognized any exception to mootness that would alter this result. This is not a case in which the offending legislation has been repealed but may be reenacted in a form similar to its present one. Compare Northeastern Fla. Chapter of the Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 662 (1993); City of Mesquite v. «22. Aladdin's Castle, Inc., 455 U.S. 283, 289 & n.11 (1982). Unlike this case, Florida Associated General Contractors involved a governmental body that repealed and reenacted a challenged minority set-aside ordinance while an appeal was pending in this Court. Similarly, in Aladdin's Castle, the proponent of a repealed statute explicitly stated that it intended to reenact the legislation. See 455 U.S. at 289 n.11. Moreover, in that case, the City of Mesquite had passed the ordinance challenged in the Supreme Court only after a similar law was declared unconstitutional by a Texas state court. /d. at 287-89. The 1994 MFBE Program, in contrast, expired by its own terms and has not been replaced with any form of race- or gender- conscious contracting prefererice, and the County has no history of reenacting, in slightly modified form, statutes that have been found unconstitutional. Nor is this a case involving “voluntary cessation” of challenged conduct, unaccompanied by a change in legislation. Compare Adarand Constructors, Inc. v. Slater, 528 U.S. 216 (2000); Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000);- United States v. Concentrated Phosphate Export Ass'n, Inc., 393 U.S. 199 (1968); United States v. W.T. Grant Co., 345 U.S. 629 (1953). In such cases, because there is nothing preventing the defendant from resuming its offending acts, this Court has held that “{vjoluntary cessation of challenged conduct moots a case . . . only if it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Adarand Constructors, 528 U.S. at 222 (citing Concentrated Phosphate Export Ass'n, 393 U.S. at 203) (internal quotation marks omitted). But where — as here — the case involves a statute that expires or is repealed or amended, no such showing is required. Rather, such a case is moot unless the challenged legislation is likely to be reenacted in substantially similar -23- form. Compare Burke, 479 U.S. at 363; Diffenderfer,404 U.S. at 414-15, with Fia. Associated Gen. Contractors, 508 U.S. at 662; Aladdin's Castle, 455 U.S. at 287-89.* The district court did not suggest a contrary result. Its opinion below contains only one reference to the expiration of the Program: No evidence was offered of any intention on the part of Fulton County to allow the 1994 MFBE Program to expire. The legality of the Program was vigorously defended at trial. The Court infers from this that the County believes there is a continuing need for the Program and that it will be continued unless enjoined by this Court. Pet. App. 6la. This staiement is not a finding regarding mootness, however; the 1994 MFBE Program had not yet expired at the time of the decision, and no mootness issue was before the court. Rather, the court’s statement arose in an entirely different context. The court made the statement in the course of deciding whether the Program was narrowly tailored, *Adarand Constructors does not undermine this conclusion. Although that case also involved a challenge to a set-aside program favoring “disadvantaged businesses,” the “voluntary cessation” was a state agency’s grant of disadvantaged business status to the plaintiff. Adarand Constructors, 528 U.S. at 221-22. The Tenth Circuit assumed that that act mooted the case against the United States Department of Transportation (“DOT”) because DOT would accept the state agency’s certification for purposes of federal projects. /d. This Court disagreed, holding that it was not clear whether DOT would classify plaintiff as a disadvantaged business for purposes of federal contracting. /d. at 222-23. Therefore, this Court held, the suit against DOT was not moot. /d. No such “voluntary cessation” even arguably exists in this case, where, as in Burke, the offending conduct ceased because of the expiration of a challenged statute. -24- which depends in significant part on an analysis of the preference’s duration. /d.° Accordingly, because the 1994 MFBE Program has expired, this Court’s decision in Burke directs that even a properly tailored injunction — limited to enjoining the Program — would be moot. Review is therefore warranted to ensure consistency with this Court’s precedents. 2. A decision of the Second Circuit, Associated General Contractors of Connecticut, Inc. v. City of New Haven, 41 F.3d 62, also requires a conclusion that even a properly tailored injunction would be moot. In that case, the City of New Haven enacted a set-aside for minority- and female-owned business enterprises in 1983. Jd. at 64. In light of this Court’s decision in Croson, however, the City created a special committee to determine whether sufficient evidentiary support existed for the 1983 program. Jd. At about the same time, Associated General Contractors of Connecticut, Inc. challenged the constitutionality of that program. /d. at 65. When the City *Similarly, the district court’s comment in its recent opinion on Green Thumb’s motion for attorneys’ fees and costs that there was evidence that the County would have reenacted the Program absent an injunction has nothing to do with mootness. See Pet. App. 123a. The court made that statement in the course of determining whether Green Thumb was a “prevailing party” under 42 U.S.C. § 1988(b) — limited by Eleventh Circuit case law to those who “conceivably could benefit” from the court’s judgment — so as to be entitled to attorneys’ fees. Pet. App. 119a-120a (emphasis added). Applying that standard, the district court found that Green Thumb “conceivably could benefit” from a favorable judgment because “evidence exists” that the injunction altered Fulton County’s actions. Pet. App. 123a. The court did not cite any record evidence in support of this statement, however. Moreover, the mootness of the injunction was not at issue, and the court did not purport to make any findings in this regard. -25- later adopted a similar set-aside ordinance with a three-year _ sunset provision, the contractors filed an amended complaint seeking declaratory and injunctive relief with respect to this latest legislation. Jd. The district court granted summary judgment in favor of the plaintiffs in May 1992, but neglected to enter final judgment until August 1993, over a month after the subsequently enacted program would have expired by its own terms had it not been declared unconstitutional. Jd. The Second Circuit held that the case was moot. Like the program at issue in City of New Haven, the 1994 MFBE Program expired by its own terms pending appeal. As was true of the City of New Haven, Fulton County “did not repeal [the Program] to avoid an adverse judgment and it has not reenacted [the Program] or a similar provision.” Jd. at 66. And even if the County were to enact a new race- and gender- conscious contracting plan, it would have to be supported by updated statistical data, and would be subject to attack and justification on different grounds. /d.; see supra at 15. As the Second Circuit recognized, “[t]his probability counsels in favor of a finding of mootness.” 41 F.3d at 66. Accordingly, because even an appropriate injunction would contravene the Second Circuit’s ruling, this Court’s review is necessary. 2 Burke admonished that a challenge to the validity of a statute that has expired should be treated no differently from a challenge to a statute that has been repealed. Burke, 479 U.S. at 363. Thus, a decision upholding a properly tailored injunction in this case would conflict not only with Burke and City of New Haven, but also with the decisions of this Court and five other circuits that have held that a challenge to a statute is moot once the statute is repealed or amended. See Galioto, 477 U.S. at 559-60 (holding challenge to firearm possession statute moot where legislation was amended while -26- case was under consideration in Supreme Court); Kentucky Right of Life, Inc., 108 F.3d at 644-45 (finding challenge to campaign contribution law moot where law was amended pending appeal); National Black Police Ass'n, 108 F.3d at 348-49 (holding that a challenge to a District of Columbia law limiting campaign contributions became moot when the statute was amended to increase such limits); Jones, 57 F.3d at 922 (finding challenge to statute moot after it was amended); Native Village of Noatak, 38 F.3d at 1509-11 (finding challenge to statute moot after statute was repealed and noting that “[a] statutory change . . . is usually enough to render a case moot, even if the legislature possessed the power to reenact the statute after the lawsuit is dismissed”); Harrison & Burrowes Bridge Constructors, Inc., 981 F.2d at 58-61 (holding challenge to statute moot in light of amendment); Maryland Highways Contractors Ass'n, Inc., 933 F.2d at 1247-48 (finding that repeal of minority set-aside program and subsequent reenactment to comply with Croson mooted original challenge). Because allowing even a properly tailored injunction to stand in this case would directly conflict with these rulings, this Court’s review is clearly warranted. The petition for a writ of certiorari should be granted. Respectfully submitted, DONALD B. VERRILLI, JR. Counsel of Record DEBORAH FLOYD LESLIE H. LEpow THE FLOYD LAW OFFICES ELIZABETH A. CAVANAGH 267 Highway 74 North JENNER & BLOCK, LLC Suite 1 601 13th Street, N.W. P.O. Box 3319 Washington, D.C. 20005 Peachtree City, GA 30269 (202) 639-6000 (770) 486-6311 JUNE GREEN OVERTIS HICKS BRANTLEY OFFICE OF FULTON COUNTY ATTORNEY 141 Pryor Street, S.W., Suite 4038 Atlanta, GA 30303 (404) 730-7750 Dated: January 10, 2001 APPENDICES * ae 3 ae 4 x Fe 3 = 4) Re 3 5 2 S, Se la Appendix A United States Court of Appeals, Eleventh Circuit. Daniel WEBSTER and Peggy Webster, et al., Plaintiffs- | Cross-Appellants, Webster Green Thumb Company, and others similarly situated, Plaintiffs- Appellees, Cross-Appellants, v. FULTON COUNTY, GEORGIA, Defendant-Appellant, Cross-Appellee, Mike Kenn; Michael Hightower, et al., Defendants-Cross- : Appellees. No. 99-12216. July 19, 2000. Before ANDERSON, Chief Judge, and DUBINA and HILL, Circuit Judges. PER CURIAM: The judgment of the district court is affirmed on the basis of the opinion of the district court published at 51 F. Supp. 2d 1354 (N.D. Ga. 1999). AFFIRMED.” ' We decline to address appellants’ challenge to the scope of the injunction. The argument was not presented to the district court; rather, it was raised for the first time on appeal. 2a Appendix B United States District Court, N.D. Georgia, Atlanta Division. Daniel WEBSTER, et al., Plaintiffs, v. FULTON COUNTY, GEORGIA, et al., Defendants. No. CIV. A. 196-CV-2399-TWT. June 11, 1999. ORDER THRASH, District Judge. This is a race and sex discrimination case brought pursuant to 42 U.S.C. §§ 1981 and 1983, and the Equal Protection Clause of the Fourteenth Amendment. Beginning on May 11, 1999, the Court conducted a bench trial spanning over six days on the issue of whether Defendant Fulton County’s 1994 Minority and Female Business Enterprise (“MFBE”) Program is in violation of the Equal Protection Clause. The trial was then adjourned for two days for the Court to review the documentary evidence. The Court heard closing arguments on May 24, 1999. Based on the evidence admitted at trial and the Court’s findings of facts and conclusions of law as set forth below, the Court concludes that the 1994 MFBE Program violates the Equal Protection Clause and is therefore unconstitutional. 3a I. BACKGROUND The remaining named Plaintiffs in this case are Daniel Webster (white male), Peggy Webster (white female), and The Webster Green Thumb Company (“Green Thumb”). Plaintiff Daniel Webster is the current owner of Green Thumb, a landscaping and tree removal service.. The remaining Defendants are Fulton County and Michael Cooper, former Director of the Department of Contract Compliance and Equal Employment Opportunity (“Department”) for Fulton County. As part of their _ discrimination action, the Plaintiffs allege that Fulton County has operated since September 16, 1994, an unconstitutional affirmative action program, the 1994 MFBE Program. Plaintiffs assert that the 1994 MFBE Program unreasonably and unlawfully burdens and discriminates against businesses based solely on the race and/or sex of the businesses’ owners. The Plaintiffs’ principal claim is that Fulton County operates an illegal MFBE program that favors minorities and females in the award of contracts for goods and services. The Plaintiffs request a declaratory ruling from this Court that Fulton County’s 1994 MFBE Program is unconstitutional. (Doc. 35). They further seek an injunction to forbid further implementation of the 1994 MFBE Program, together with affirmative injunctive relief. Fulton County adopted its first minority business enterprise program in 1979. The Fulton County Board of Commissioners at that time resolved to begin an affirmative action program with a goal that at least 20% of all County public contracts be awarded to minority bidders. The Board passed resolutions continuing the program in 1984 and 1987. The 1987 resolution established the Office of Contract Compliance and Equal Employment Opportunity. In 1988, \ 4a Defendant Cooper was hired as its first Director. In September, 1988, the Board adopted a Female Business Enterprise Resolution and requested a study of discrimination against female business owners. This resulted in the February, 1989, Fulton County Female Business Enterprise Study by Beth Shapiro & Associates and the Coalition of 100 Black Women (“Shapiro Study”). (Def. Exh. 214). In the Shapiro Study, it was noted that “[n]Jo historical data are available from any source within Fulton County regarding the extent of usage of female businesses by the Purchasing Department because the vendor list does not distinguish female businesses.” (Jd. at iii). This data was not available from any other source within Fulton County. (/d. at 24). The Shapiro Study did provide extensive anecdotal evidence of barriers to female businesses in doing business with the County. This evidence included the testimony at a public hearing in October, 1989. At this hearing it was revealed that most of the participants never considered County contracts as a viable source of business for a variety of reasons. These reasons ranged from the types of services female-owned businesses typically provide and the difficulty in mainstreaming these professional services through the purchasing and contracting process to the difficulties associated with any small business such as bonding requirements. (/d. at 31). The Shapiro Study recommended the adoption of specific numerical contract goals. (/d. at 32). It recommended a goal of 5% without any real explanation as to the goal’s calculation. (/d. at 33). In January, 1989, the Supreme Court struck down a municipal minority set-aside program and adopted a strict scrutiny standard of review for such programs in the future. In response, the Board and the City of Atlanta commissioned Dr. Andrew F. Brimmer and Dr. Ray Marshall to conduct a 5a fact-finding study relating to the participation of minorities and females in the City of Atlanta and Fulton County marketplace. The purpose of the study was to allow the City of Atlanta to reintroduce its minority and female business development program. Drs. Brimmer and Marshall also studied whether discrimination against minority-owned and female-owned business enterprises (“MFBEs”) has reduced their participation in the public and private sector contracting and procurement activities in the Atlanta and Fulton County marketplace. In 1990, Drs. Brimmer and Marshall produced and submitted to the County and City of Atlanta the Brimmer-Marshall Study which consisted of eight volumes entitled “Public Policy and Promotion of Minority Economic Development: City of Atlanta and Fulton County.” (Def. Exh. 146). Dr. Thomas Boston, an economics professor, prepared a report included in the Brimmer-Marshall Study entitled “Discrimination and Economic Development: Effects on Minority and F emale Business Enterprises.” In April and June, 1992, Fulton County conducted open public hearings in which numerous individuals provided further anecdotal evidence regarding their experiences in the Fulton County contracting and procurement activities and practices in the Atlanta/Fulton County marketplace. On October 21, 1992, the Board passed a resolution accepting the findings of the Brimmer-Marshall Study. This resolution also authorized a Female Business Enterprise Program and adopted the 5% goal recommended by the Shapiro Study. The Board then passed another Resolution that authorized the implementation of a MFBE Program under the auspices of Defendant Cooper as the Director of the Department. (Def. Exh. 200). The 1992 MFBE Program utilized minority and female participation goals of 25% for African-Americans, 1% for Hispanics, 1% for Asian-Americans, 1% for Native 6a Americans and 5% for female business enterprises. (Def. Exh. 204, p. 19). In 1994, the Board engaged Dr. Boston to conduct a post- disparity study. Dr. Boston submitted this Post-Disparity Study to the Board in June, 1994. (Def. Exh. 21). On June 15, 1994, the Board approved and adopted Dr. Boston’s Post- Disparity Study on June 15, 1994. The Board then directed that the Department implement amendments to the MFBE Program based on the Post-Disparity Study. On July 20, 1994, the Board passed a resolution adopting certain amendments to the MFBE Program based upon the Post- Disparity Study. The Program became effective on September 16, 1994. The stated purpose of the 1994 MFBE Program was to alleviate the effects of past and present discrimination against minority and female business enterprises and to enhance contracting opportunities for minority and female businesses. (Pl. Exh. 1 at 1, 10). The 1994 MFBE Program provides that it shall expire five years from its effective date. (Jd. at 55). As stated in the 1994 MFBE Program, the Board “considered and determined that there are no reasonable race and gender neutral alternatives or policies available which alone will accomplish the amelioration and remedy the effects of past and present discrimination.” (Jd. at 9). The 1994 MFBE Program sets forth the following annual business participation goals for the following groups: (1) African- American business ‘enterprises — 26%; (2) Hispanic business enterprises-1%; (3) Asian-American business enterprises-1%; (4) Native American business enterprises—1%; and (5) Female business enterprises—6%. (Id. at 16-17). : Ta The 1994 MFBE Program provides that these goals are in effect for five years and are subject to an annual review and adjustment by the Department and approval by the Fulton County Manager and Board. (Jd. at 17). Pursuant to the MFBE Program, the participation goals for minority and female business enterprises are not considered to be fixed quotas. (/d. at 19). The participation goals for each project or contract are set by the Department’s Director based on the following non-exclusive list of factors: (1) the number of minority and female business enterprises known to be available for the type and value of service to be obtained; (2) a forecast of all eligible contracts to be awarded within the coming fiscal year, specifying the type and value of goods and services to be obtained; (3) the minority and female business enterprise percentages of the total number of business entities known to be available for the type and value of goods and services to be obtained; (4) the statistical and data sources by which each goal was calculated; and (5) the statistical and data sources from the 1994 Post-Disparity Study. (/d. at 18-19). The 1994 MFBE Program further provides that the good faith efforts of a potential contractor to meet minority and female business participation goals shall be considered in deciding contract awards. (/d. at 19). These good efforts include, but are not limited to: (1) attendance at pre-bid meetings which are scheduled to inform minority and female business enterprises of prime and _ subcontracting opportunities; (2) advertisements in general circulation media, trade association publications, and minority and female enterprise media to provide notice of opportunities; (3) written notice to known minority and female business enterprises soliciting their interest in opportunities; (4) efforts made to select portions of work for minority and 8a female businesses subcontracting in areas likely to be successful; (5) efforts to negotiate with minority and female businesses for specific subcontracting; (6) efforts made to assist minority and female businesses to meet bonding, insurance, or other governmental contracting requirements; (7) a statement of reasons why a particular minority or female business enterprise contacted is not qualified for a contract; and (8) communication with the Department seeking assistance for identifying minority and female business enterprises. (/d. at 19-20, 34-35). The MFBE Program applies “to the totality of Fulton County procurement and contracting, including construction and the acquisition of all commodities, equipment, goods and services (including professional services), however titled and irrespective of the modality or manner procured, and irrespective as to whether purchased or leased.” The initial categories established by the Board that were encompassed under the MFBE program are listed as (1) construction; (2) commodities; (3) services; and (4) professional services. (Jd. at 22-23). Fulton County reserved the right to amend these categories upon recommendation by the Fulton County Manager and the Board. (/d. at 22). The 1994 MFBE Program provides that the Department shall evaluate and set appropriate minority or female business participation goals for each specific project or contract. (/d. at 25). The Department should consider (1) the nature of the project or contract and the relevant specifications; (2) the availability of minority and female business enterprises in various industry classifications and professions which are ready and able to provide goods and services on the particular project or contract; (3) the level of participation of such firms on past projects or contracts awarded by Fulton County; and 9a (4) other relevant factors. (/d. at 26). The MFBE Program proposes several methods to achieve the minority and female business participation goals as follows: (1) Minority and Female Business Enterprise Solicitations on Procurement Purchase Orders. For all purchases, each Fulton County buyer and any other Fulton County employee having the authority to procure is required to contact at least one minority or femele business enterprise bidder. (2) Joint Ventures Program. The Department shall encourage, where economically feasible, establishment of joint ventures and mentor protégé programs to insure prime : contracting opportunities for minority or female business enterprises on eligible projects. If the prime contractor is a minority or female business ‘enterprise or a joint venture between minority and female firms, subcontracting participation with minority and female business enterprises shall be required on all projects exceeding $10,000,000. (3) Mentor/Protégé Ventures. The Department encourages mentor/protégé prograns to assist individual minority and female business enterprises in financing, bonding, construction management and technical assistance. (4) Minority and Female Business Enterprise Subcontracting and Supplier Purchasing Goals on Construction Projects and Other Contracts. The Department shall ensure the maximum practicable opportunity for minority and female business participation by requiring that all bidders on a designated project or contract comply with certain remedial measures. 10a (5) Construction Subcontracting. The Department may impose a requirement that bidders wanting to serve as prime contractors on a bid for a Fulton County construction project identified under Program Scope shall subcontract with minority and female business enterprises for a stated percentage of the dollar value of the project. (6) Subcontractor Participation. Where a prime contractor utilizes one or more subcontractors to satisfy its minority or female business participation commitment, the prime contractor may count only expenditures to minority and female business enterprise contractors that perform a commercially useful function in the contract work. (7) Suppliers Participation. Where a prime contractor utilizes one or more suppliers to satisfy its minority or female business participation commitment, credit will be given toward the applicable goal as follows: (1) 100% of the contract amount for minority and female business suppliers who manufacture the goods supplied; (2) 100% of the contract amount for minority and female business suppliers who are wholesalers warehousing the goods supplied; and (3) where an extraordinarily large portion of the contract price is for equipment or supplies, a lower project goal may be set than otherwise would be required. (8) Professional Services. Where Fulton County requires the utilization of professional consultants, the Department shall make knowledgeable and available minority or female business enterprises aware of opportunities to serve as primary consultants on bids. (Id. at 27-33). lia The 1994 MFBE Program provides that the Department’s good faith efforts are established, where the situation is deemed to be an emergency, and where deemed appropriate by the Director, the Fulton County Manager and the Board. (/d. at 36). A bidder or offeror may seek a partial or total waiver of the project goals. The application for a waiver shall include documentary evidence of the bidder’s or offeror’s good faith efforts to meet the project goals and why the request should be granted. (/d. at 37). The 1994 MFBE Program contains a section entitled “Race and Gender Neutral Business Opportunity Assistance Measures.” (/d. at 39). In this section, the 1994 MFBE Program provides that the Department has developed a comprehensive and multifaceted Outreach Program in an effort to increase participation:among MFBEs in the Fulton County bid process. (/d. at 40). The section also lists several other race and gender neutral opportunity business measures consisting of the following: (1) the Fulton County Purchasing Department, with the assistance of the Department, shall investigate the extent to which non- competitive procurement modalities such as sole source, multi-year, blanket and emergency purchases have been utilized excessively or unnecessarily to the detriment of competition; (2) the Department, Purchasing Department, Project Management Department, and using departments shall identify large Fulton County contracting opportunities to determine whether they may be segmented into two or more smaller bids to provide increased contracting opportunities for small businesses; (3) the Purchasing Department shall determine whether it is appropriate to segment multi-bids to provide increased procurement opportunities for MFBEs who may not have submitted bids on all items requested; (4) the 12a Department and other appropriate departments will conduct seminars and workshops on how to do business with Fulton County; (5) the Department will work closely with local governmental entities in providing bonding assistance; (6) the Department shall assist small businesses in locating available financial resources within the Atlanta area; (7) the Department shall act as a clearinghouse for information on financial assistance programs for small businesses; (8) the Department will offer services to assist small businesses in construction management and technical services; (9) when a contract or service award has been made, the Department’s Director and the purchasing agent shall furnish, upon request, a letter to the contractor stating the information that may be utilized by the MFBE to establish lines of credit with lending institutions and manufacturers; (10) Fulton County may make special provisions for reasonable progress payments during the performance of a contractual obligation by small MFBEs; and (11) Fulton County shall enforce all existing policies and regulations relating to the prompt payment of its bidders. (/d. at 40). The 1994 MFBE Program provides that all firms participating as either a minority or female business enterprise must be certified before the award of a bid or execution of a contract after review and evaluation as to compliance. (/d. at 45). In determining whether a firm is eligible to be certified, any minority or female firm engaged in or attempting to engage in business in the Fulton County Metropolitan Statistical Area before July 20, 1994, is rebuttably presumed to have suffered past racial or gender discrimination and is therefore an eligible minority or female business enterprise. In order to be a certified minority or female business enterprise, the firm or joint venture must comply with certain eligibility standards regarding minority 13a or female control and ownership of the firm or joint venture. (Id. at 47-49). The Department reviews whether there is sufficient minority or female operational or managerial contro! so that the firm can be certified. (/d. at 49-51). The 1994 MFBE Program provides an appeals process for any contractor, bidder or offeror who has been denied certification as an MBE or FBE or against whom a determination has been made of non-compliance with the program policy requirements. (/d. at 51-52). A notice of appeal must be filed with the Department’s Director who will then forward the notice to the Department’s Hearing Officer. (/d.). The Department’s Hearing Officer, after conducting a hearing, will then issue a decision either affirming, altering or reversing the determination of non-compliance or denial of certification by the Department’s Director. The Invitation to Bid/Request for Proposal used by Fulton County lists the “requirements for all bidders interested in doing business with Fulton County.” (Pl. Exh. 2). Item 28 of the requirements states that: “Fulton County has a minority and female business enterprise participation program. Failure to comply with this program may result in rejection of a bid.” (/d.). The foregoing historical facts are undisputed. To the extent that decision of the case requires resolution of factual disputes, those matters are discussed below. II. DISCUSSION The present action was filed in 1996. The Plaintiffs, in part, challenge the constitutionality of Fulton County’s 1994 MFBE Program and seek a declaratory judgment and an injunction against the further implementation of this program. Based on the evidence admitted at the bench trial, the Plaintiffs contend that Defendant Fulton County has failed to 14a demonstrate either a compelling or important governmental interest in using racial or gender classifications as a basis to award contracts. They contend that Fulton County has failed to show sufficient evidence of actual discrimination, whether active or passive, to justify any program of racial or gender preference. The Plaintiffs further contend, based upon the admitted evidence, that the race and gender-conscious 1994 MFBE Program is not narrowly tailored to remedy specifically identified discrimination. The Defendants contend that the Fulton County 1994 MFBE Program is constitutional based on evidence identifying past discrimination against minority and female business enterprises. Based on the evidence admitted, the Defendants contend that Fulton County had a compelling interest in remedying past discrimination and that Fulton County properly considered and implemented race and gender-neutral remedies. The Defendants contend that the 1994 MFBE Program is narrowly tailored to remedy past discrimination based on its flexibility toward reaching goals and its graduation, waiver and sunset provisions. | A. STANDING At various times during the pendency of this action, the Defendants have questioned whether the Plaintiffs have standing to bring their constitutional claims. At the bench trial, the Defendants again challenge whether any of the Plaintiffs (Green Thumb, Daniel Webster, and Peggy Webster) have standing to challenge the constitutionality of the 1994 MFBE Program. The Defendants also contend that the Websters have no standing to challenge the remaining constitutional claims. The Court concludes that Green Thumb has standing to challenge the program based on the evidence admitted at the bench trial and the reasons stated in 15a the Court’s order addressing the parties’ summary judgment motions. In addressing an affirmative action set-aside program for contractors’ services, the Supreme Court has stated that: When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing. The “injury in fact” in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit. And in the context of a challenge to a set-aside program, the “injury in fact” is the inability to compete on an equal footing in the bidding process, not the loss of a contract. To establish standing, therefore, a party challenging a set-aside program ... need only demonstrate that it is able and ready to bid on contracts and that a discriminatory policy prevents it from doing so on an equai footing. Northeastern Florida Chapter of the Associated General Contractors of America v. City of Jacksonville, Fla., 508 U.S. 656, 666, 113 S. Ct. 2297, 2303, 124 L. Ed. 2d 586 (1993). The Plaintiff Green Thumb has demonstrated that it is able and ready to bid on contracts and that a discriminatory policy prevents it from doing so on an equal footing. (Pl. Exh. 1, 206, 207). The Plaintiffs acknowledge that Daniel and Peggy Webster have no standing to challenge the constitutionality of the 1994 MFBE Program. The Court will reserve ruling on 16a whether the Websters have standing to assert a claim for monetary damages.” B. LEGAL STANDARDS FOR SCRUTINIZING PREFERENCE PROGRAMS The Equal Protection Clause of the Fourteenth Amendment provides that “[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV. The Supreme Court in City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S. Ct. 706, 102 L. Ed. 2d 854 (1989), has set forth the constitutional standard applicable for programs establishing racial or ethnic preferences. The Court applied the strict scrutiny test, which requires a “searching judicial inquiry into the justification” for the preference to determine whether the classifications are remedial or “in fact motivated by illegitimate notions of racial inferiority or simple racial politics.” Jd. at 493, 109 S. Ct. at 721. The Strict scrutiny test is therefore designed to expose “illegitimate uses of race by assuring that the legislative body is pursuing a goal important enough to warrant use of a highly suspect tool” and to “ensure that the means chosen ‘fit’ this compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype.” Jd. Accordingly, the strict scrutiny test requires that racial or ethnic preference programs “must be based upon a ‘compelling governmental interest’ and must be ‘narrowly tailored’ to achieve that interest.” Engineering Contractors ' Because Green Thumb is the only Plaintiff with standing to challenge the constitutionality of the 1994 MFBE Program, the Court will refer herein to Green Thumb as “Plaintiff.” 17a Assoc. of South Florida, Inc. v. Metropolitan Dade County, 122 F.3d 895, 906 (11th Cir. 1997), cert. denied, 523 U.S. 1004, 118 S. Ct. 1186, — L. Ed. 2d — (1998) (citation omitted). Explicit racial preferences may not be used except as a “last resort.” Jd. at 926. To uphold a racial or ethnic preference program, the district court must first make a factual determination that a strong basis in evidence exists to support the conclusion that the remedial racial or ethnic program is necessary. Croson, 488 U.S. at 500, 109 S. Ct. at 725; Engineering Contractors, 122 F.3d at 906. General, amorphous claims of societal discrimination, simple legislative assurances of good intention, or congressional findings of discrimination in the national economy are not sufficient to establish a “strong basis in evidence.” Engineering Contractors, 122 F.3d at 907. Racial or ethnic preference programs, however, can be justified by demonstrating gross statistical disparities between the proportion of minorities hired for projects or contracts, and the proportion of minorities willing and able to do the work. Id. Anecdotal evidence may be used to establish discrimination, especially if buttressed by relevant statistical evidence. Jd. Accordingly, in this case, if Fulton County can show that it has become a “ ‘passive participant’ in a system of racial exclusion practiced” in connection with the awards of projects and contracts in the county, the Supreme Court has made it “clear that the [county] could take affirmative steps to dismantle such a system.” Croson, 488 U.S. at 492, 109 S. Ct. at 721. If there is a strong basis in evidence to justify a race or ethnic conscious program, the next step requires courts to consider whether the program is sufficiently narrowly tailored to achieve that interest. Racial and ethnic preferences must be a “last resort” option. See Engineering Contractors, 122 F.3d 18a at 926. Such programs must be “vigorously scrutinized to ensure that they do not go too far.” Jd. at 927. The following four factors, as identified by the Eleventh Circuit, provide a useful analytical structure for determining whether a race or ethnicity-conscious program is _ narrowly tailored: (1) necessity for the relief and the efficacy of alternative remedies; (2) the flexibility and duration of the relief, including availability of waiver provisions; (3) the relationship of numerical goals to the relevant labor market; and (4) the impact on the rights of innocent third-parties. Engineering Contractors, 122 F.3d at 927. Intermediate scrutiny is the applicable constitutional standard for analyzing programs that establish gender preferences. Engineering Contractors, 122 F.3d at 907-08. Thus, to withstand constitutional challenge to a gender preference program, such gender preference must serve important governmental objectives and be substantially related to achievement of those objectives. Jd. The proponent of a gender preference program must present sufficient probative evidence of discrimination. Jd. at 910. The Eleventh Circuit recognized that the “sufficient probative evidence” standard is less stringent than the “strong basis in evidence” required to bear the weight of a race or ethnic preference program. Id. at 909-10. The following guidelines set forth the boundaries of intermediate scrutiny evidentiary analysis: (1) the local government must demonstrate some past discrimination against women, but not necessarily discrimination by the government itself; and (2) such review “is not to be directed toward mandating that gender-conscious affirmative action is used only as a ‘last resort’.” Jd. at 910. “Under intermediate scrutiny, a gender-conscious program need not closely tie its numerical goals to the proportion of women in the market.” Id. at 929. 19a In making its factual determination that either a “strong basis in evidence” or “sufficient probative evidence” exists to support the necessity of an affirmative action program, the court may consider post-enactment evidence in addition to pre-enactment evidence. Engineering Contractors Association of South Florida, Inc. v. Metropolitan Dade County, 943 F. Supp. 1546, 1557 (S.D. Fla. 1996), aff'd, 122 F.3d 895 (1997). Pre-enactment evidence pertains to evidence developed before Fulton County enacted the MFBE Program, and thus, could have been relied upon by the Board in adopting the MFBE Program. Jd. Conversely, post- enactment evidence pertains to evidence developed after the MFBE Program was enacted and was therefore not relied upon as a rationale for the program. /d. The Eleventh Circuit has held that post-enactment evidence may be introduced into the record to determine the constitutionality of a race or gender preference program: Although Croson requires that a public employer show strong evidence of discrimination when defending an affirmative action plan, the Supreme Court has never required that, before implementing affirmative action, the employer must have already proved that it has discriminated. On the contrary, formal findings of discrimination need neither precede nor accompany the adoption of affirmative action. Engineering Contractors, 122 F.3d at 911 (quoting Ensley Branch, N.A.A.C.P. v. Seibels, 31 F.3d 1548, 1565 (11th Cir. 1994)). | Consideration of post-enactment evidence is appropriate when scrutinizing race or gender preference programs because a violation of either federal statutory or constitutional requirements arises when the wrong is committed, and not with the making of a finding. 20a Engineering Contractors, 122 F.3d at 911 (citing Wygant v. Jackson Bd. Of Educ., 476 U.S. 267, 289, 106 S. Ct. 1842, 1855, 90 L. Ed. 2d 260 (1986) (O’Connor, J., concurring)). Consideration of post-enactment evidence is especially appropriate where the principal relief sought is injunctive relief. Engineering Contractors, 122 F.3d at 911. The Defendants bear the initial burden of production to demonstrate a “strong basis in evidence” or “sufficient probative evidence” that the race, nic or gender preference program aims to remedy past or present discrimination and is constitutional under the Fourteenth Amendment. Engineering Contractors, 122 F.3d at 916; Concrete Works of Colorado, Inc. v. City And County of Denver, 36 F.3d 1513, 1522 (10th Cir. 1994), cert. denied, 514 U.S. 1004, 115 S. Ct. 1315, 131 L. Ed. 2d 196 (1995). Notwithstanding this initial burden of proof, “[t]he ultimate burden [of proof] remains with [the challenging party] to demonstrate the unconstitutionality of an affirmative-action program.” Concrete Works, 36 F.3d at 1522 (quoting Wygant, 476 U.S. at 277-78, 106 S. Ct. at 1849). As explained by the Eleventh Circuit in the context of public employment, once the proponent of a race preference plan: introduces its statistical proof as evidence of its remedial purpose, thereby supplying the [district] court with the means for determining that [it] had a firm basis for concluding that remedial action was appropriate, it is incumbent upon the nonminority [employees] to prove their case; they continue to bear the ultimate burden of persuading the [district] court that the [public employer’s] evidence did not support an inference of prior discrimination and thus a remedial purpose, or that the plan 21a instituted on the basis of this evidence was not sufficiently “narrowly tailored.” Howard v. McLucas, 871 F.2d 1000, 1007 (11th Cir. 1989) (quoting Wygant, 476 U.S. at 293, 106 S. Ct. at 1856 (O’Connor, J., concurring)). When statistical evidence is sufficient to support an inference of discrimination, the Plaintiff has at least the following three methods to rebut the inference of discrimination with a neutral explanation: (1) demonstrate that the statistics are flawed; (2) demonstrate that the disparities shown by the statistics are not significant or actionable; or (3) present conflicting statistical data. Engineering Contractors, 122 F.3d at 916. Before examining whether the 1994 MFBE Program passes constitutional muster based on.the admitted evidence, it is instructive to analyze the decisions in Croson and Engineering Contractors. In those cases, the Supreme Court and the Eleventh Circuit analyzed programs with some similar characteristics to the 1994 MFBE Program. In Croson, the Supreme Court struck down the City of Richmond’s minority set-aside program because the City failed to provide a strong basis in evidence establishing past or present discrimination. Croson, 488 U.S. at 498-506, 109 S. Ct. at 723-28. The minority set-aside program required majority-owned prime contractors to whom the City awarded construction contracts to subcontract at least 30% of the dollar amount to one or more MBEs. /d. at 477-78, 109 S. Ct. at 713. The Supreme Court first found unpersuasive the City’s mere declaration that the set-aside program was “remedial.” Jd. at 500, 109 S. Ct. at 725. The Court then discredited the statistical pool used by the City to demonstrate discrimination in the construction industry. Although the City established a disparity between the number of prime 22a contracts awarded to minority firms and the City’s minority population, the Supreme Court found that a more appropriate comparison would be between the number of contracts awarded to minority firms and the number of qualified minority contractors. Jd. at 501-02, 109 S. Ct. at 725-26. The Supreme Court stated that: Where there is a significant statistical disparity between the number of qualified minority contractors willing and able to perform a particular service and the number of such contractors actually engaged by the locality or the locality’s prime contractors, an inference of discriminatory exclusion could arise. Under such circumstances, the [locality] could act to dismantle the closed business system by taking appropriate measures against those who discriminate on the basis of race or other illegitimate criteria. In the extreme case, some form of narrowly tailored racial preference might be necessary to break down patterns of deliberate exclusion. Id. at 509, 109 S. Ct. at 730 (citations omitted). The Supreme Court further found that national data about discrimination in the construction industry offered little insight into the particular conditions in the City of Richmond. /d. at 504, 109 S. Ct. at 727. Following Croson, the Eleventh Circuit in Engineering Contractors affirmed the district court’s decision declaring the Dade County, Florida’s race, ethnic and gender preference programs to be unconstitutional. Engineering Contractors, 122 F.3d at 900. Dade County’s programs, referred to collectively as MWBE programs, set participation goals of 15% for black business enterprises (“BBEs”), 19% for Hispanic business enterprises (“HBEs”), and 11% for women 23a business enterprises (“WBEs”). The MWBE programs applied only to construction contracts, the only classes of contracts having participation goals. To justify its programs, Dade County advanced substantial statistical and anecdotal evidence. Jd. at 911-26. The heart of its statistical analysis consisted of Dade County contracting statistics that compared three factors for its nonprocurement construction contracts: (1) the percentage of bidders that were MWBE firms; (2) the percentage of awardees that were MWBE firms; and (3) the proportion of Dade County contracts that were awarded to MWBE firms. /d. at 912. The analysis covered two time periods, 1989-1991 and 1993. The Eleventh Circuit concluded that the district court did not err by failing to find a strong basis in evidence of racial and ethnic discrimination based on the disparities between bidder and awardee percentages. Id. at 913. Likewise, the Eleventh Circuit found no error with regard to the district court’s finding of no sufficiently probative evidence of gender discrimination. Jd. Dade County also calculated disparity indexes with regard to the utilization of BBEs, HBEs, and WBEs in the Dade County market by comparing the amount of contract awards a particular group received to the amount it would be expected to receive based on that group’s bidding activity and awardee success rate. The Eleventh Circuit found statistically significant underutilization of BBEs, less dramatic underutilization of HBEs, and mixed results as to the utilization of WBEs. Jd. at 914-16. The Plaintiffs introduced evidence that the disparities in the utilization of MWBEs are better explained by firm size than by discrimination. Dade County then conducted regression analysis to control for firm size. Despite a few unexplained disparities that remained after controlling for firm size, the district court concluded that the demonstrated disparities were better explained by firm 24a size than by discrimination. Jd. at 917-18. The Eleventh Circuit did not find this conclusion to be clearly erroneous. Id. at 918-19. Dade County also submitted its statistics to measure the participation of each MWBE group in the County’s subcontracting business. The district court found the subcontracting study “insufficiently probative to support the use of race and ethnic preferences and inadequate to support a gender classification.” /d. at 919-20. The Eleventh Circuit concluded that this finding was not clearly erroneous. /d. at 920. Dade County also introduced marketplace data statistics to determine whether meaningful relationships existed between (1) the race, ethnicity and gender of the surveyed firm owners, and (2) the reported sales and receipts of those firms. The study was based on a sample of 586 contractors that had filed a “certificate of competency” with Dade County. The Eleventh Circuit noted that the parameters of the studies’ universe necessarily included firms that were unwilling, unable or unqualified to perform Dade County construction contracts. Jd. at 920-91. The study found statistical unfavorable disparities only with respect to HBEs. The district court found, however, these disparities not to be controlling based on the entirety of the evidence. /d. at 921. The Eleventh Circuit did not find the district court’s conclusion to be clearly erroneous in light of the problems with the statistical pool. Jd. \ Next, Dade County introduced a statistical analysis of Jon Wainwright which compared construction business ownership rates of MWBEs to those of non-MWBEs and analyzed the disparities in the personal income between MWBE and non-MWBE owners. The study concluded that blacks, Hispanics and women are less likely to own 25a and MWBEs in the construction business earn less money that similarly situated white males. The Eleventh Circuit found this evidence insufficient to show discrimination in light of evidence indicating the tremendous growth of MWBE firms and the fact that firm size better explained the identified disparities. Jd. at 922-23. Finally, Dade County presented a study by Dr. Andrew Brimmer which was a historical analysis of black-owned construction firms. The study demonstrated the existence of substantial disparities for black-owned construction business receipts for some years, but not others. The Eleventh Circuit noted that the district court had discounted the significance of the unfavorable disparities because the Brimmer Study failed to account for firm size. Jd. at 923-24. Again, the Eleventh Circuit did not find the district court’s view to be implausible. Jd. at 924. With regard to the entire body of statistical evidence, the Eleventh Circuit stated that it “cannot hold that the district court clearly erred in finding that the statistical evidence was too weak an evidentiary foundation to bear the weight of any of the MWBE programs under the standards of review applicable to them.” Jd. The Eleventh Circuit also concluded that the anecdotal evidence was insufficient to support the MWBE programs especially without the requisite statistical foundation. Jd. at 926. Thus, the Eleventh Circuit affirmed the district court’s judgment enjoining the operation of the MWBE programs on the grounds that Dade County’s failure to establish a constitutionally sufficient evidentiary foundation for the race, ethnic and gender conscious programs. Jd. The Eleventh Circuit further concluded that the BBE and HBE programs were not sufficiently narrowly tailored. /d. at 26a 927-29. The Eleventh Circuit found that Dade County did not give serious and good-faith consideration to the use of race and ethnicity neutral measures to increase BBE and HBE participation. /d. Finally, the Eleventh Circuit noted that the district court erred by drawing “no distinction between its analysis of whether [Dade] County’s BBE and HBE programs were narrowly tailored and whether the WBE program bore a substantial relationship to [Dade] County’s stated rationale for implementing gender-conscious affirmative action, in response to perceived discrimination against women-owned contractors.” Jd. at 929. The court stated that: If the WBE program rested on a sufficient evidentiary foundation, we could not conclude that it would fail the substantial relationship prong of the intermediate scrutiny analysis. However, because the district court did not clearly err in finding that [Dade] County had failed to present sufficient probative evidence in support of its stated rationale for implementing a gender preference program, the district court’s error in applying the substantial relationship test does not change the result. Id. This Court is bound to follow the precedents set by the Supreme Court and the Eleventh Circuit in this area. The Court is not at liberty to apply its own notions of what is good public policy or its own notions of the appropriate standard for reviewing minority and gender preference programs. The Court’s duty is to follow the Constitution and the law as interpreted by the Supreme Court and the Eleventh Circuit. With this understanding of the controlling decisions in Croson and Engineering Contractors, the Court now turns to the evidence admitted at trial to determine whether the 27a Fulton County 1994 MFBE Program violates the Equal Protection Clause. C. “STRONG BASIS IN EVIDENCE” AND “SUFFICIENT PROBATIVE EVIDENCE” The Defendants have presented two types of evidence in support of the 1994 MFBE Program: (1) statistical evidence and (2) anecdotal evidence. The Court will review the evidence to determine whether the Defendants have demonstrated both the “strong basis in evidence” standard in connection with the race preference program and the less stringent “sufficient probative evidence” standard in connection with the gender preference program. 1. STATISTICAL EVIDENCE There have been three basic categories of statistical evidence presented to the Court: (1) the 1990 Brimmer-Marshall Study; (2) the 1994 Post-Disparity Study prepared by Dr. Boston; and (3) various statistical studies covering the years 1994-1997.2 The Court will summarize and analyze each of these categories. Whether considered individually or together, the statistical evidence presented by the Defendants fails to establish a either a strong basis in evidence for a race or ethnic preference or sufficient probative evidence of gender discrimination. ? The Court gives no weight to the purchase order data contained in Def. Exh. 226. The inclusion in this data of purchase orders to public agencies and charities makes the minority to non-minority comparisons meaningless. The figures also do not include minority subcontracts. 28a a. The 1990 Brimmer-Marshall Study In 1990, Drs. Brimmer and Marshall produced and submitted to Fulton County and City of Atlanta the Brimmer-Marshall Study. The Study consisted of eight volumes entitled “Public Policy and Promotion of Minority Economic Development: City of Atlanta and Fulton County.” (Def. Exh. 146). Overal!, the eight-volume study details discrimination against minorities and females based on historical, statistical and anecdotal evidence. In Part I, Drs. Brimmer and Marshall summarize their findings of discrimination in both the private and public Atlanta business sectors. They noted wide-spread discrimination in the larger more lucrative private sector. They found large disparities in public and private contracting opportunities between minority and majority firms. (Def. Exh. 146, Brimmer-Marshall Study, Part I at 88). According to the study, minority firms derived most of their revenue from the public sector, while public firms derived most of their revenues from the private sector. The Brimmer- Marshall Study further noted that there was low participation by minority business enterprises in the City of Atlanta contracting relative to the value of the contracts awarded to non-minority business enterprises. (/d. at 99). Dr. Boston prepared Part III of the Brimmer-Marshall Study. He concluded that MFBEs have not experienced equity in private and public markets for the procurement of contracts in Atlanta and Fulton County. Part I of the study also contained a summary of the statistical analysis comparing the amount of contract dollars going to minority firms to the availability of minority firms in the same year. In the Brimmer-Marshall Study this was presented as a statistical relationship known as_ the Utilization-Percentage Ratio (“UPR”), or disparity index. 29a This index is calculated by dividing the utilization of a certain ethnic or gender group by the availability of the same group.” It is the ratio of two percentages: the percentage of contracts actually awarded to minority businesses by the percentage of — all businesses qualified and wiiling to perform contracts for Fulton County, who belong to a specific racial, ethnic or gender group. Underutilization is shown by a number smaller than one, and overutiiization by a number greater than one. A UPR of .5 means that the racial or gender group in question is only receiving 50% of the contract awards or contract dollars that one would expect; that is, if a race had an availability of 20% and received only 10% of the contract awards or contract dollars, this would generate a disparity index of 0.5, and show underutilization. If an ethnic group had availability of 10% and utilization of 20%, this would generate a disparity index of 2.0 and show overutilization. The Eleventh Circuit has recognized that disparity indexes greater than 80%, or .8, are generally not considered indications of discrimination. Engineering Contractors, 122 F.3d at 914. In the years 1972, 1977 and 1982, the UPRs, or disparity indexes, for black-owned businesses for United States, Georgia, the Atlanta Standard Metropolitan Statistical Area (“SMSA”) and Fulton County computed under 20% for all industries and under 27% for construction and developers. (Id. at 103). In Part V of the Brimmer-Marshall Study, the authors provided additional statistical analysis in the form of UPR calculations covering the years 1972, 1977 and 1982 for five geographic regions (United States, Georgia, Atlanta SMSA, > Utilization can be measured in at least two ways: (1) dollars awarded, or (2) number of contracts awarded. 30a Fulton County, and City of Atlanta). The study analyzed primarily black and minority-owned firms and covered six industrial classifications, including construction, general contractors, trade contractors and land developers. The data was collected from the U.S. Census Bureau’s Survey of Minority-Owned Business Enterprises (“SMOBE”). Dr. Jon Wainwright testified at trial that he prepared this part of the Brimmer-Marshall Study. The Brimmer-Marshall Study found consistently low UPR values across all industries in the Atlanta SMSA and Fulton County, even lower than the corresponding UPRs for Georgia and the United States. It must be emphasized that all of this data looks at the marketplace as a whole. After reviewing the Brimmer-Marshall Study, the Court finds that it is insufficient to establish a strong basis in evidence for the 1994 MFBE Program.- There are two flaws in the analysis that are insurmountable. First, the analysis in the Brimmer-Marshall Study proceeds on the premise that a Statistical showing of underutilization of minorities in the marketplace as a whole is sufficient proof of discrimination to justify a program of racial preferences by a local government in whatever area is involved. This assumption is directly contrary to Justice O’Connor’s analysis in Croson. If a Statistical showing of underutilization of minorities in the marketplace as a whole is sufficient proof of discrimination to justify a program of racial preferences, such a showing as to the United States as a whole would justify racial preferences by every governing entity in the United States. General claims of societal discrimination in the marketplace are not enough to justify a race or ethnic-conscious program. See Croson, 488 U.S. at 499, 109 S. Ct. at 724. In Croson, Justice O’Connor was clear that the focus must be on 3la contracting by the entity that is considering the preference program: In the case at hand, the city has not ascertained how many minority enterprises are present in the local construction market nor the level of their participation in city construction projects. The city points to no evidence that qualified minority contractors have been passed over for city contracts or subcontracts, either as a group or in any individual case. Under such circumstances, it is simply impossible to say that the city has demonstrated “a strong basis in evidence for its conclusion that remedial action was necessary.” Proper findings in this regard are necessary to define both the scope of the injury and the extent of the remedy necessary to cure its effects. Id. at 510, 109 S. Ct. at 730. Dr. Boston has testified that historically minorities have sought public sector work more than majority contractors. The existence of minority preference programs will have the effect of further concentrating minority business efforts in a sector where they have an advantage. For all of these reasons, statistical evidence of underutilization of minorities in the general Atlanta marketplace alone does not show discrimination by Fulton County according to Croson. There is no statistical evidence in the Brimmer-Marshall Study of discrimination by Fulton County government in the award of contracts. Therefore, in order to justify racial preferences, the County must show that it is a “passive participant” in discrimination by the private sector. Croson, 488 U.S. at 492, 109 S. Ct. at 721; Engineering Contractors, 122 F.3d at 911. The Court coes not accept Dr. Marshall’s concept of “passive participation” as meaning any 32a governmental contracting in a marketplace where there is discrimination. On the other hand, the County could take remedial action if it had evidence that non-minority contractors were systematically excluding minority businesses from subcontracting opportunities. Croson, 488 U.S. at 509, 109 S. Ct. at 730. The County could take remedial action if it had evidence that its spending practices are “exacerbating a pattern of prior discrimination” that can be identified with specificity. Jd. at 504, 109 S. Ct. at 727. The Brimmer-Marshall Study contains no statistical data regarding the utilization of minority subcontractors by prime contractors doing business with Fulton County It does not show that the County’s spending practices are exacerbating identified discrimination in the private sector. The County may rely upon a showing of discrimination in the private sector if it provides a linkage between private sector discrimination and the County’s contracting policies. Concrete Works, 36 F.3d at 1529. No such linkage is provided by the data in the Brimmer-Marshall Study. The second flaw is there is no statistical analysis of other factors that may affect minority business enterprise availability and utilization. Dr. Marshall testified at trial that the trouble with statistics is that they frequently conceal as much as they reveal. The Brimmer-Marshall Study does set forth statistical analysis showing disparities in the availability of minority and black-owned firms compared to their utilization in terms of dollars awarded. Nevertheless, the study contains no attempt to explain whether the disparity is due to discrimination or other neutral reasons, such as firm “ Such studies have been done. For example, Dr. Boston testified that he has performed such a study for the Georgia Department of Transportation. 33a size and the ability of a firm to obtain financing and bonding. In Part [Iil, Dr. Boston identifies some of these factors as having a significant impact with regard to the acquisition of public or private contracts. By contrast, Dade County in Engineering Contractors sought to explain through regression analyses that the disparities were due to discrimination and not due to any neutral explanations such as firm size. Engineering Contractors, 122 F.3d at 917-18. Regression analysis is a statistical procedure for determining the relationship between a dependent and independent variable. The purpose of a regression analysis is to determine which of a number of possible factors (‘independent variables”) are responsible for a given outcome. The Brimmer-Marshall Study did not utilize regression analysis to determine the cause of the disparities between minority availability and utilization in the marketplace as a whole. The data to do a regression analysis was not available. Dr. Marshall, in his trial testimony, dismissed this issue by saying that there is some residuum of underutilization that is not accounted for by neutral factors. The problem with this response is that the residuum remains unidentified and, following Croson, race specific goals cannot be implemented on the basis of generalizations about the existence of and the degree of disw?imination. Finally, it is questionable whether Fulton County could rely upon disparities in 1972, 1977 and 1982 to enact a preference program in 1994 when more current data should have been and was available. At trial, Dr. Marshall submitted into evidence a report showing disparity indices for 1987 and 1992, based on census and SMOBE data. This statistical study, however, was never considered by the Board in implementing the 1994 MFBE Program. This study repeats the flaws of the original Brimmer-Marshall Study by assuming that a showing of 34a discrimination in the marketplace as a whole is sufficient to comply with Croson. The disparity indexes reported cover the United States, Georgia, and Atlanta SMSA regions. They are based on data that examine minority business participation in the overall economy and not just the private sector. (Def. Exh. 235 at 21). The study only reports disparity indexes as to African-American firms and does not reference any other minority group. Again, statistical analysis, like a regression analysis, was not performed to determine whether factors other than discrimination played any role in the underutilization of African-American firms. Applying Croson correctly, this data has the same inadequacy as the original Brimmer-Marshall Study. It is apparent from his report and his testimony at trial that Dr. Marshall disagrees with the implications of the Croson decision. (Def. Exh. 235 at 32). His criticism of the decision may be valid from a public policy perspective. However, this Court, unlike Dr. Marshall, is bound to follow Supreme Court precedent whatever doubts it may have about the wisdom of its decision. Overall, the Court finds and concludes that the statistical evidence presented in the Brimmer-Marshall Study fails to provide a strong basis in evidence of discrimination against MBEs to justify Fulton County’s racial and ethnic preference program. Given the flaws identified in these statistics, this study fails to show “gross statistical disparities” between the proportion of MBEs hired for projects or contracts, and the proportion of minorities willing and able to do the work for Fulton County. See Engineering Contractors, 122 F.3d at 908. Further, the Court finds and concludes that the Brimmer-Marshall Study, which primarily offers statistical evidence as to minority-owned firms, fails to offer sufficient 35a probative evidence of gender discrimination to justify Fulton County’s gender preference program. b. The 1994 Post-Disparity Study At the heart of Fulton County’s statistical evidence in justifying the 1994 MFBE program is Dr. Boston’s 1994 Post-Disparity Study. (Def. Exh. 21). In this Study, Dr. Boston tried to do what was not done in the Brimmer- Marshall Study, that is, to analyze Fulton County’s utilization of female and minority contractors in relation to their availability. The 1994 MFBE Program states that the percentage goals for minority and female participation were based in part on methodology suggested by this study. (PI. Exh. | at 17). The 1994 Post-Disparity study evaluated the utilization of minority or female vendors by Fulton County from 1990-1993, the four years immediately preceding the implementation of the program. In the 1994 Post-Disparity Study, Dr. Boston addresses whether there was a significant “disparity index” or “UPT’, showing that Fulton County had underutilized minority and female contractors during that period. The conclusion of the study was that “(t]he current goals and utilization percentages are still below the levels that are warranted by the availability of minority and female vendors and by the extent of historical discrimination.” (Def. Exh. 21). The overall disparity index in evidence for the period 1990- 93 is reflected in a document entitled “Fulton’s UPI Calculation,” created by Dr. Boston. (Def. Exh. 2). To calculate disparity indexes for Fulton County contracts, Dr. Boston sets out to determine the availability and utilization of minority and female firms. Two methods may be used to calculate availability: (1) bid analysis; or (2) bidder analysis. 36a In a bid analysis, the analyst counts the number of bids submitted by minority or female firms over a period of time and divides it by the total number of bids submitted in the same period. In a bidder analysis, the analyst counts the number of minority or female firms submitting bids and divides it by the total number of firms which submitted bids during the same period. Dr. Boston’s availability calculations relied on the number of firms submitting bids rather than the gross number of bids. In arriving at his availability percentages, Dr. Boston did not consider any data from Fulton County concerning the race and gender of firms who actually bid for contracts with Fulton County. He wanted to use Fulton County bid data, but he considered the data the County had to be faulty and inaccurate. Instead, he took the results of two previous studies he had performed for the City of Atlanta and the Atlanta School System and averaged them together. Dr. Boston used data covering the years 1978 through 1988 to compute the City of Atlanta availability. The availability figures for the City of Atlanta were derived from the number of different bid applicants over the ten-year period. He then used data for the years 1982 through 1992 to compute the Atlanta School System availability. The availability figures for the Atlanta School System were derived from the number of vendor applicants over the ten-year period. Dr. Boston found that the overall MFBE availability for the City of Atlanta was 28.3% and for the Atlanta School System 42.6%. Thus, the average availability was 35.45%. Dr. Boston then adjusted the availability results by the number of certified MFBE firms certified in Fulton County in 1994, the total number being 699. Dr. Boston’s “adjusted” availability for African-Americans was 28.6%, for White Females 3.55%, for Hispanics 1.22%, for Asians 1.83%, and for Native 37a Americans 0.25%. (Def. Exh. 2; Def. Exh. 21 at Table 19(a)). ; In measuring utilization, Dr. Boston relied on data collected from the Fulton County Uniform Contract Sign-Off Sheets. (Def. Exh. 21 at 21, Table 1). Table 1 in the 1994 Post- Disparity Study shows minority utilization of 13.50% in 1990, 24.03% in 1991, 19.12% in 1992, and 23.22% in 1993. This table further shows female utilization of .22% in 1990, .03% in 1991, 1.63% in 1992, and 4.33% in 1993. The table contains the following caveat: Women vendors ... means women who are not elsewhere classified, primarily white women. However, a small number of minority women vendors are also included in this total. These women and are [sic] not also included in the minority total. (Id. at Table 1). The utilization figures in this table were calculated by dividing the dollar awards to either minority or women vendors by the total dollar awards that year. Dr. Boston’s 1994 Post-Disparity and his “Fulton’s UPI Calculation” document reflect that the “Average utilization 1990-93” was 19.63% for “Minority” and 1.43% for “Females”. (/d. at Table 19(b)). Table 19(a)-(f) lists the relevant availability and utilization figures used by Dr. Boston to develop the methodology for deriving the one and five year goals of Fulton County. In dividing total minority average utilization by total adjusted minority availability (19.63%/3 1.90%), Dr. Boston calculates a UPI for the years 1990-1993 of 61.54%. The UPI for majority women (1.43%/3.55%) is calculated to be 40.28%. From these calculations, Dr. Boston sets forth his 38a recommended goal for minorities at “29% starting in 1995 and increasing by one percentage point over the next five years to 33%.” (id. at Table 19(d)). His recommended goal for females is 6% beginning in 1995 and increasing by one percentage point over each of the next five years to 10%. (/d.). In order to determine whether Dr. Boston’s Study provides a strong basis in evidence to justify a racial preference program, the Court must examine both the data utilized by Dr. Boston and the methodology employed by him in analyzing the data. The evidence introduced at trial reveals serious flaws in both the data and the methodology employed by Dr. Boston. First, following Croson, Fulton County is justified in adopting a program of racial preferences if it can show a strong statistical disparity between the availability of minority firms and their utilization by Fulton County. The two crucial numbers then are availability and utilization. Dr. Boston’s availability numbers are set forth in Table 19(a) as follows: Blacks 28.60% White Females 3.55% Hispanics 1.22% Asians 1.83% Native Americans 0.25% Percent of all available firms 35.45% No explanation is given in the Study itself as to [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_IA40386014_1691%3A1. Public record. Not legal advice.