VIA HAND DELIVERY

Hon. Bill Campbell

Mayor, City of Atlanta

55 Trinity Avenue

Suite 2400

Atlanta, Georgia 30335-0319

RE: City of Atlanta MFBE Program

Dear Mayor Campbell:

Enclosed please find a copy of the final order of Judge Thomas W. Thrash, Jr, of the United States District Court for the Northern District of Georgia, in Daniel Webster et al. v. Fulton County, Georgia, et al., entered on June 11, 1999. The order strikes down Fulton County’s MFBE Program, holding that the Program is unconstitutional in violation of the Equal Protection Clause of the Fourteenth Amendment. The order permanently enjoins 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 awarding of Fulton County contracts."

The Webster case challenged Fulton County’s MFBE Program on the grounds that the Program unlawfully denied non-minority contractors the "right to compete on equal footing in the bidding process" because the County awarded contracts based on a system which imposed goals, quotas and preferences designed to "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." See Northeastern Florida Chapter of the Associated General Contractors of America v. City of Jacksonville, 508 U.S. 656, 666, 113 S.Ct. 2297 (1993) (holding City’s affirmative action denied equal treatment to majority contractors by erecting a racial barrier to their ability to obtain work with the City). In support of its minority preference Program, the County relied on disparity studies prepared for the County and the City of Atlanta by Dr. Andrew F. Brimmer, Dr. Ray Marshall and Dr. Thomas Boston.

The Court conducted a "searching judicial inquiry into the justification" advanced by the County’s disparity studies to determine whether the racial classifications contained in its MFBE Program were remedial or "in fact motivated by illegitimate notions of racial inferiority or simple racial politics." Order at 12, citing City of Richmond v. Croson, 488 U.S. 469, 493, 109 S.Ct. 706, 721 (1989). The Court found that the Brimmer-Marshall Study is insufficient to establish the evidentiary basis required by the Constitution to justify the racial discrimination imposed by the County’s Program.

As a matter of law, the Brimmer-Marshall study fails to demonstrate disparities in minority contracting in the Atlanta Metropolitan Statistical Area. Order at 23-29, 54. Furthermore, Dr. Boston’s supplementary studies, conducted to bolster the Brimmer-Marshall study, were found to be similarly flawed. Order at 29-40. In short, the "Court [was] not persuaded that "the methodology produces any reliable information in support of racial preferences in contracting." (emphasis added). Order at 37. Rather, the Court found that reliable statistics for the Atlanta Metropolitan Statistical Area actually support a finding that there is "no discrimination against minorities and possible discrimination against non-minorities." Order at 42.

Judge Thrash’s findings in the Webster case are supported by earlier findings by the federal court in this district in Prior Tire Enterprises, Inc. d/b/a Prior Tire Company v. Atlanta Public School District, Civil Action File No. 1-95-0825-JEC (1998). There, Judge Carnes found similar constitutional infirmities arising out of APS’s use of Dr. Boston’s disparity studies. As a result of that litigation, APS dismantled its MFBE Program and maintains a lawful race-neutral contracting system.



It now well-settled law is in this district that minority preference programs by governments in the Atlanta Metropolitan Statistical Area have no basis in evidence and are, therefore, unconstitutional. These programs erect unlawful barriers which restrict the ability of non-minority contractors to bid for local government contracts, they discriminate on the basis of race, gender and ethnicity, and, most importantly, they are based on notions of racial inferiority and stereotyping that harm all of our citizens.

It is also clear that the City must terminate its MFBE Program. On behalf of non-minority contractors who have been injured by the City’s Program, we would be interested in meeting with you, the City Attorney, members of the City Council and the Office of Contract Compliance to discuss acceptable terms for dismantling the City’s MFBE Program. However, be assured that, if the City is unwilling to voluntarily comply with the law, Southeastern Legal Foundation will not hesitate to file suit to protect the constitutional rights of non-minority contractors. Of course, given the settled precedent regarding the illegality of preferences and quotas based on the Brimmer-Marshall and Boston studies, government officials who continue to enforce the City’s MFBE Program will be subject to individual liability for violating the clearly established constitutional rights of non-minority contractors.





We look forward to hearing from the City to arrange a date and time to discuss the termination of the City’s MFBE Program. However, if the City is unwilling to negotiate, please be advised that we will file suit within thirty days to enjoin the Program and require the City to compensate our clients for injuries received as a result of the City’s intentional discrimination.





Very truly yours,





Matthew J. Glavin

President





Valle Simms Dutcher

General Counsel

Enclosures



cc: Susan Bronson, Acting Director,

Office of Contract Compliance (via First Class Mail)

Susan Pease Langford, Esquire

City Attorney (via First Class Mail)

Mr. Robert L. Pitts, President,

Atlanta City Council (via First Class Mail)

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