Full opinion text
Amended Findings of Fact and Conclusions of Law JORDAN, District Judge. A little more than six years ago, the Eleventh Circuit upheld Judge Kenneth Ryskamp’s ruling that Miami-Dade County’s Minority and Women Business Enterprise (MWBE) programs violated the Fourteenth Amendment’s Equal Protection Clause as applied to sectors of the construction contracting industry. See Engineering Contractors Ass’n v. Metropolitan Dade County, 943 F.Supp. 1546 (S.D.Fla.1996), aff'd, 122 F.3d 895 (11th Cir.1997) (EGA). Despite this adverse decision, Miami-Dade County did not amend, modify, or repeal the remaining sections of its MWBE programs, and further litigation predictably ensued. This case involves a post-ECA challenge, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, ei seq., and under the Equal Protection Clause of the Fourteenth Amendment, see 42 U.S.C. § 1983, to sections of the MWBE programs establishing “participation goals” for minority and women business enterprises in awarding County architectural and engineering (A & E) contracts. The' plaintiffs — Hershell Gill Consulting Engineers, Inc. and Brill and Rodriguez, Inc.—are engineering firms owned by white males. The defendants are Miami-Dade County, former County Manager Merritt Stierheim (sued only in his official capacity), and various former and current County Commissioners sued in their official and individual capacities (Betty Ferguson, Barbara Carey-Shuler, Bruno Barreiro, Pedro Reboredo, Gwen Margolis, Dorrin Rolle, Dennis Moss, Miriam Alonso, Katy Sorenson, Jimmy Morales, Javier Souto, Miguel Diaz de la Portilla, and Natacha Millan). The Women’s Business Enterprise Group (WBEG) intervened on behalf of the County and actively participated at the preliminary injunction hearing and at trial. The Urban Design Professionals Association — a. trade association representing the interests of black professional engineers, architects, and design professionals — also intervened on the County’s side, but was subsequently dismissed from the • case for failing to obtain substitute counsel. As explained below, the MWBE programs are unconstitutional as applied to A & E contracts, and will be permanently enjoined in that sphere. The Commissioners are absolutely immune in their individual capacities for their, votes in favor of the MWBE .programs and their subsequent decisions to not repeal or amend the programs. But with respect to their votes to apply MWBE measures to A & E contracts that were presented to them, the Commissioners were acting in their administrative capacities, and do not receive absolute immunity. Because the law was clearly established, at least since ECA, that the MWBE programs were unconstitutional absent the' requisite evidentiary support, the Commissioners are not entitled to qualified immunity and are liable for any compensatory and punitive damages in their individual capacities. The plaintiffs, however, have failed to prove any compensatory damages, and punitive damages are not warranted. The plaintiffs will only be awarded nominal damages and attorney’s fees and costs, for which the Commissioners and the County will be jointly and severally liable. I. Background The County’s MWBE programs are no strangers to legal challenges. In South Florida Chapter of Associated General Contractors v. Metropolitan Dade County, 723 F.2d 846 (11th Cir.1984), the Eleventh Circuit upheld an earlier version (the Black Business Enterprise (BBE) program) in its entirety. In so doing, the Eleventh Circuit followed Chief Justice Burger’s plurality opinion in Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980). The standard Chief Justice Burger used to analyze the constitutionality of an affirmative action program in Fullilove was neither strict scrutiny nor any other traditional standard of equal protection review. See, e.g., id. at 473, 490-92, 100 S.Ct. 2758. Five years after the Eleventh Circuit decided Associated General Contractors, the Supreme Court abandoned the Fullilove standard for analyzing state and local race-based remedial programs, holding that such programs must satisfy strict scrutiny to pass constitutional muster. See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493-95, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) (four-justice plurality); id. at 520, 109 S.Ct. 706 (Scalia, J., concurring) (agreeing that “strict scrutiny must be applied to all governmental classifications by race”). Following the Croson decision, several non-minority plaintiffs brought a second constitutional challenge to Miami-Dade County’s BBE program. That case, Capeletti Bros., et al. v. Metro. Dade County, et al., No. 90-0678-Civ-Rys-kamp, was tried in the Southern District of Florida in July of 1992. Before Judge Ryskamp issued his opinion, however, the parties reached a settlement and stipulated to a dismissal of the action with prejudice. In September of 1994, six trade associations whose members regularly performed work on County construction projects filed a third suit in the Southern District of Florida. The complaint named the County, its Commissioners, and certain other related parties as defendants. The trade associations challenged the same MWBE programs at issue here, but only as they applied to certain sectors (Standard Industry Classifications (SIC) 15, 16, and 17) of the construction industry. Judge Rys-kamp struck down the three MWBE programs as applied, and the Eleventh Circuit affirmed. See See Engineering Contractors Ass’n v. Metropolitan Dade County, 943 F.Supp. 1546 (S.D.Fla.1996), aff'd, 122 F.3d 895 (11th Cir.1997) (ECA). The County subsequently enacted a Community Small Business Enterprise (CSBE) program for construction contracts, but continued to apply racial, ethnic, and gender criteria to its purchases of goods and services in other areas, including its procurement of A & E services. II. The County’s MWBE Programs At issue in this case are three sections of the MWBE programs enacted by the Miami-Dade County Board of Commissioners, specifically, §§ 2-8.2, 2-8.2.3, and 2-8.2.4 of the County Code: (1) the Black Business Enterprise (BBE) program, enacted in 1982 and most recently amended in 1994; (2) the Hispanic Business Enterprise (HBE) program, enacted in 1994; and (3) the Women Business Enterprise (WBE) program, enacted in 1994. For ease of reference, these three programs are collectively referred to as the MWBE programs. In order to qualify for participation in one of the MWBE programs, a business must be owned and controlled by one or more black, Hispanic, or female individuals, and must have an actual place of business in Miami-Dade County. MWBE joint ventures must have at least one member certified under one of the three MWBE programs. Each MWBE participant must also demonstrate that it does not exceed the size limits for “small business concerns” as defined by the Small Business Administration of the United States Department of Commerce. If an MWBE exceeds that size limit, however, it may retain its certification if it demonstrates that “it continues to experience the kinds of racial [or gender] discrimination addressed by [the programs].” County Code § 2-8.2(3)(e). . The MWBE programs apply to certain classes of County contracts for which participation goals have been set. This case concerns only architecture and engineering (A & E) contracts, which means that only a portion of SIC 871 of County contracts is involved. For this class of contracts, the County has set participation goals of 12% for BBEs, 25% for HBEs, and 17% for WBEs. The participation goals apply to all A & E contracts in excess of $25,000 that are funded in whole or in part by the County. The County is required to make every reasonable effort to achieve the participation goals, and may use any of the following five contract measures to do so: • Set-Asides — This measure provides that a contract is set aside for bidding solely among MWBEs. In general, the County may use the set-aside measure if there are at least three MWBE businesses available to perform the contract. The County may also waive competitive bidding if there are at least two MWBEs available, provided neither of them has' been awarded a County contract for like goods or services in the last three years, and a price analysis has been done to ensure that the price is competitive. • Subcontractor Goals — This measure requires a prime contractor to subcontract a certain percentage of work to MWBEs. The percentage is determined on a case-by-case basis. A waiver is available if the prime contractor can demonstrate that MTWBEs are not available to do the work at a competitive price. • Project Goals — This measure allows the County to create a pool of MWBE subcontractors from which it selects firms for specified types of work under County contracts. . • Bid Preferences — This measure artificially “reduces” an MWBE bid price by as much as 10 % for purposes of determining the lowest bid. The actual price the County pays for the work is unaffected by this “reduction.” • Selection Factors — This measure is similar to a bid preference, but operates on factors other than price. For instance, when bid evaluation procedures assign weights to various factors, MWBE performance on those factors may be boosted by up to 10 %. Once an A & E contract is identified as being subject to a participation goal, it is submitted to a review committee to determine whether a contract measure should be applied. The Board of County Commissioners (some times referred to as the County Commission) ultimately decides whether to apply such a measure, and its decision is appealable to the County Manager. The County Manager’s decision is final, unless the County Commission exercises its discretion to review and override it. Significantly, each year the County must review.the MWBE programs for their efficacy and revise the participation goals based on an annual study by the Department of Business Development. See County Code §§ 2 — 8.2(3)(j)—(k), 2-8.2.3(3){j) — (k), 2-8.2.4(3)(j)-(k). Despite this requirement — expressly stated in the text of the MWBE ordinances — from 1994 to 2000 the Commission did not conduct a study — with the exception of the 1998-1999 studies presented by the County Manager finding that parity had been reached (discussed later) — and never adjusted or revised the MWBE participation goals. See, e.g., Trial Transcript at 255, 282, 284, 406. In other words, the participation goals for the three MWBE programs challenged here have remained unchanged since 1994. Every five years, when the Survey of Minority-Owned Business Enterprises is published by the United States Census Bureau, the County Commission must decide whether to continue the programs. Two Commissioners testified at trial that they would have continued the MWBE programs (and their participation goals) had a preliminary injunction not been entered. See Trial Transcript at 219-20, 235. A. The Contracting Process Miami-Dade County, like individuals, corporations, and other governmental entities, utilizes A & E services in connection with a myriad of construction and maintenance projects. The system the County uses to award contracts can be generally described as follows. First, when a need for architectural or engineering services is identified or anticipated by a County agency, the agency requests that the County Commission issue a request for proposals (RFP). After review, staff determines whether a contract measure will be included in the RFP. The Commission then votes whether to issue the RFP as recommended. Second, the RFP will identify by specialty (architecture, civil engineering, structural engineering, etc.) which entity will be the prime consultant. Only firms certified by the Department of Public Works in that specialty may submit responses to the RFP. The RFP may (and usually does) require that firms certified in other specialties be included as subconsultants. More often than not, when an RFP calls for an architecture firm as a prime consultant, it requires the use of. an engineering firm as a subconsultant, and vice-versa. Third, the agency issuing the RFP will review the various responses. This review includes, among other things, an examination of the qualifications of the firms responding, the history of those firms in working on similar projects, their compliance with any contract measures previously imposed, their work history, and their reliability. Fourth, the issuing agency will “cull” the responses and “short list” a number of firms. These firms will then be invited to make more detailed presentations to the agency. Fifth, the agency will select the firm it believes is best qualified to perform the project in question and will enter into negotiations concerning price. If the negotiations are successful, the contract goes to the County Commission for approval. If the negotiations are unsuccessful, the agency enters into negotiations with the next most qualified firm. This process can be repeated until an acceptable agreement is reached. B. The County Manager’s Reports of Parity In May of 1998, after the Eleventh Circuit’s decision in ECA, counsel for the plaintiffs in this case wrote to the County Commissioners requesting that they discontinue the use of contract measures on A & E contracts, and threatening legal action if the measures continued. See Plaintiffs’ Exh. 86. In response to this letter, the County Manager appointed staff to formulate new processes regarding, among other things, the creation of a CSBE program for A & E contracting. See Plaintiffs’ Exh. 6 at 1. In a memorandum dated October 28, 1998, the County Manager reported to the Commissioners that, according to a study by the County’s Department of Business Development, “[i]t is clear that the County has reached parity in the areas of architecture and engineering for Black, Hispanic, and women owned firms.” Id. at 2; The study, which tracked A & E dollars awarded by the County, showed that Hispanics constituted -36% of certified firms and received 58% of dollars awarded; that blacks constituted 7.5% of certified firms and received 16.39% of dollars awarded; and that women constituted 14.66% of certified firms and received 17.1% of dollars awarded. See Plaintiffs’ Exh. 10; Trial Transcript at 212-14, 389-91. On November 24,1998, the County Manager transmitted to the Commissioners the text of a proposed ordinance which would establish a CSBE program for' A & E contracts and recommended its adoption. See Plaintiffs’ Exh. 7. The Commissioners, however, refused to follow that recommendation because they felt the study did not present a complete picture of the marketplace. See, e.g., Trial Transcript at 53, 95, 110-11, 125, 232-33, 365-66, 410. By the time the Commissioners held their December 15, 1998, meeting, the County Manager had submitted another memorandum recommending that no further measures be utilized for A & E contracts because parity had been reached. See Plaintiffs’ Exh. 9 at 8. The Commissioners indicated that they doubted the figures presented by the County Manager showing parity. They were concerned that the numbers reflected amounts awarded rather than amounts actually paid, and felt that an analysis of the latter figure might lead to a finding of disparity. Indeed, some minority A & E- contractors appeared before the Commissioners and made that same claim. See Trial Transcript at 110-11, 122-25. Accordingly, the County Manager initiated a study focusing on amounts actually paid in A & E contracting. The result of the subsequent study was the same. In a memorandum dated February 2, 1999, the County Manager informed the Commissioners that this additional analysis also indicated that parity had been reached. See Plaintiffs’ Exh. 11. The memorandum succinctly states the evidence then available to the Commissioners: On December 15, 1998, I presented to the Board [the Commission] a report on participation goals for Fiscal Year 1996-97 to be used as a basis for prospective goals for 1998 on all County contracts including architecture, landscape architecture, ‘ engineering, surveying and mapping services. The analysis indicated that parity had been reached in the areas of architectural and engineering services for Black, Hispanic and Women-owned firms. The Board raised concerns that the analysis was based on dollars awarded, and that staff was unable to present an analysis of annual dollars paid. At that time the Board deferred the projects held in abeyance. On January 21, 1999, I presented a report (Item 7(D)4a on today’s agenda) to the Board based on an analysis using actual dollars paid to prime consultants on architectural and engineering contracts during Fiscal Years 1996-97. This analysis shows that the County has reached parity for Black, Hispanic and Women-owned firms in the areas of architectural and engineering services. Based on all the analyses that have been performed, the County does not have a basis for the establishment of participation goals which would alloiv staff to apply contract measures. Id. (emphasis added). The Commissioners were also informed that “there was even less evidence to support [the MWBE] programs as applied to architects and engineers than there was in contract construction.” Trial Transcript at 202. At the same meeting where the County-Manager presented his findings and recommendations, the Commissioners chose not to enact a CSBE program, and voted instead to continue the MWBE participation goals at their previous levels in the award of A & E contracts. By then the goals had remained the same for about five years without any revision. Although the Commissioners indicated that they needed more information, and voted to continue applying contract measures until a further study could be conducted, there is absolutely no evidence that such a study was even initiated until this action had been pending for 18 months. Even at trial, some Commissioners were unaware whether this further study had in fact been completed. See, e.g., Trial Transcript at 52, 66-67, 96, 199— 200, 406. Despite the lack of a factual basis for A & E measures, the Commissioners continued to apply these measures until they were enjoined from doing so in October of 2000. According to their testimony at trial, some Commissioners continued to believe that, notwithstanding the lack of evidence, discrimination existed with respect to A & E contracting. See, e.g., Trial Transcript at 413 (“I don’t have any evidence to dispute it [disparity], but I know it’s not true.”). The mindset of at least some of the Commissioners was to go forward with the MWBE programs as they related to A & E services, and to defend the programs if they were challenged in court. See Trial Transcript at 234, 255-56. Not surprisingly, this action ensued. C. Dr. Carvajal’s Report In May of 2000, about 18 months after the lawsuit was filed, the County and the intervenors hired Dr. Manuel J. Carvajal, an econometrician who teaches at Florida International University, to conduct a study on architects and engineers in Miami-Dade County. His final report consisted of four parts: (1) data identification and collection of methodology for displaying the research results; (2) presentation and discussion of tables pertaining to architecture, civil engineering, structural engineering, and awards of contracts in those areas; (3) analysis of the structure and empirical estimates of various sets of regression equations, the calculation of corresponding indices, and an assessment of their importance; and (4) a conclusion that there is discrimination against women and Hispanics — but not against blacks — in the fields of architecture and engineering. When the trial date was continued, the plaintiffs moved for a preliminary injunction. During the preliminary injunction hearing (which constituted the first two days of trial pursuant to the provisions of Rule 65(a)(2) of the Federal Rules of Civil Procedure), the defendants and the inter-venors presented all of the evidence — both statistical and anecdotal — then available in support of the three MWBE programs. I found that evidence insufficient, and in October of 2000, before Dr. Carvajal’s final report was submitted, issued a preliminary injunction prohibiting use of the three MWBE programs as applied to A & E contacts and services. The remainder of the trial was conducted intermittently over the next eight months. To obviate the need for a remand from the Eleventh Circuit, and given that a preliminary injunction was in place, this order was held pending the Supreme Court’s decisions in Gratz v. Bollinger, 539 U.S. 244, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003), and Grutter v. Bollinger, 539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003), and cases interpreting those decisions. III. The Constitutional Standards Á. RACE and Ethnicity The BBE and HBE programs create preferences on the bases of race and ethnicity. The applicable constitutional standard for analyzing these programs, therefore, is strict scrutiny. See Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 227, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995); Croson, 488 U.S. at 494, 109 S.Ct. 706; Johnson v. Board of Regents of the University of Georgia, 263 F.3d 1234, 1243 (11th Cir.2001); Bass v. Board of County Comm’s, 256 F.3d 1095, 1116 (11th Cir.2001); ECA, 122 F.3d at 906. Strict scrutiny requires that an affirmative action program be based on a compelling governmental interest, and that it be narrowly tailored to achieve that interest. See, e.g., Adarand, 515 U.S. at 227, 115 S.Ct. 2097; ECA, 122 F.3d at 906, The County argues that its affirmative action program is in place to remedy .past and current discrimination in the A & E industry. Remedying past or present discrimination is widely accepted as a compelling governmental interest, so the critical question here is not the nature of the County’s interest but the sufficiency of the evidence of discrimination and the narrow tailoring of the remedy. See, e.g., ECA 122. F.3d at 906 (citing Ensley Branch, NAACP v. Seibels, 31 F.3d 1548, 1565 (11th Cir.1994)). The proponent of a racial or ethnic classification bears the burden of proving that it meets strict scrutiny, see, e.g., Johnson, 263 F.3d at 1244, and must present a strong basis in evidence for the classification. See, e.g., ECA 122 F.3d at 906 (“If a. .race- or ethnicity-conscious affirmative action program is to be upheld, ‘the district court must make a factual determination that [there exists] a strong basis in evidence’ to support the conclusion that remedial action is necessary.”) (quoting Ensley Branch, 31 F.3d at 1565). A strong basis in evidence cannot rest on a mere claim of societal discrimination or on simple legislative assurances of good intentions. See ECA, 122 F.3d at 907. A municipality, however, cán justify affirmative action by demonstrating “gross statistical disparities” between the proportion of minorities awarded contracts and the proportion of minorities willing and able to do the work. See ECA, 122 F.3d at 907. Presenting anecdotal evidence is also a permissible method of showing discrimination, especially if buttressed by statistical data. See ECA 122 F.3d at 907. “[I]f if the [County] could show that it had essentially become a ‘passive participant’ in a system of racial exclusion practiced by elements of the local [A & E] industry,” then “[it] could take affirmative' steps to dismantle such a system.” Croson, 488 U.S. at 492, 109 S.Ct. 706. See also ECA 122 F.3d at 907. Given the County’s asserted interest— remedying past and current discrimination in the A & E industry — the Supreme Court’s recent decisions in Grutter, 123 S.Ct. at 2339-40, and Gratz, 123 S.Ct. at 2426-27—which recognize that a university’s goal of attaining student body diversity for its educational benefits can constitute a compelling state interest—do not alter the equal protection framework discussed above. In other words, Gratz and Grutter do not modify Croson or Adarand in the area of public contracting. Cf. Petit v. City of Chicago, 352 F.3d 1111, 1114 (7th Cir.2003) (applying Grutter diversity rationale to promotion decisions of large metropolitan police force in a “racially and ethnically divided major American city like Chicago”). Nevertheless, some of the language in Gratz and Grutter is helpful with several of the issues presented here. B. Gender In order to survive a constitutional challenge, the County’s gender-conscious WBE program must withstand intermediate scrutiny. See Danskine v. Miami Dade Fire Dept., 253 F.3d 1288, 1293 (11th Cir.2001); ECA, 122 F.3d at 908. See also Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982) (intermediate scrutiny is the appropriate test to apply to a gender-based classification favoring women). Under intermediate scrutiny, the government must show that the gender-based classification serves an important governmental objective, and that it is substantially related to the achievement of that objective. See Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721, 123 S.Ct. 1972, 1978, 155 L.Ed.2d 953 (2003); ECA, 122 F.3d at 908; Danskine, 253 F.3d at 1294. The County asserts the same justification for the WBE program as for the BBE and HBE programs: remedying past and current discrimination in the A & E industry. This objective is clearly “important” enough to sustain a gender-conscious affirmative action program. See, e.g., Califano v. Webster, 430 U.S. 313, 318, 97 S.Ct. 1192, 51 L.Ed.2d 360 (1977); Danskine, 253 F.3d at 1295; ECA, 122 F.3d at 908. The constitutionality of the program, once again, turns on the sufficiency of the evidence of discrimination against women in the A & E industry and the fit of the chosen remedy (i.e., whether the remedy is “substantially related” to achieve the stated goal). See Danskine, 253 F.3d at 1294; ECA, 122 F.3d at 909. The level of evidentiary sufficiency required by intermediate scrutiny is “something less than the ‘strong basis in evidence’ required to bear the weight of a race or ethnicity-conscious program.” ECA, 122 F.3d at 909. Stated differently, “in the gender context less evidence is required.” Id. Nevertheless, “a proponent of a gender-conscious affirmative action program must present not only probative evidence of discrimination, but sufficient probative evidence of it.” Id. at 910. See also Danskine, 253 F.3d at 1294. Two principal guidelines frame the intermediate scrutiny analysis. First, while the County must demonstrate past discrimination against women, that discrimination need not have been by the County itself. See Danskine, 253 F.3d at 1294; ECA 122 F.3d at 910; Ensley Branch, 31 F.3d at 1580. Second, “the intermediate scrutiny evidentiary analysis is not to be directed toward mandating that gender-conscious affirmative action is used only as a ‘last resort,’ but instead to ensuring that the affirmative action program is ‘a product of analysis rather than a stereotyped reaction based on habit.’” ECA, 122 F.3d at 910 (citations omitted). Thus, the intermediate scrutiny evidentiary analysis “turns on whether there is evidence of past discrimination in the economic sphere at which the affirmative action program is directed.” ECA 122 F.3d at 910 (quoting Ensley Branch, 31 F.3d at 1581). See also Danskine, 253 F.3d at 1294. IV. The First Prong: “Compelling Interest” & “Important Government Objective” The County and the intervenors presented both statistical and anecdotal evidence in an attempt to show that discrimination exists in the A & E industry. The statistical evidence was presented through Dr. Carvajal, an econometrician who was personally involved with the study prepared by the County in support of the ordinances at issue in the ECA case. Additionally, the intervenors presented, as anecdotal evidence, the testimony of female architects and engineers who said they havé experienced discrimination in the awarding of County contracts, as well as in the marketplace. It was not until Dr. Carvajal completed his study during the course of this litigation, in March of 2001, that any study concerning the MWBE programs was finalized. Thus, much of the statistical evidence presented by the intervenors and the County is “post-enactment” evidence, that is, evidence derived from data relating to the time subsequent to the County’s enactment of the MWBE programs. “Although post-enactment evidence is admissible to determine whether an affirmative action program is constitutional, such evidence carries with it the hazard that the program at issue may itself be masking discrimination that might otherwise be occurring in the relevant market.” ECA, 122 F.3d at 912. Accordingly, I will keep the potential effect of the MWBE programs in mind when analyzing the evidence presented by the County and the intervenors. Dr. Carvajal’s study, by focusing on annual volume of business rather than solely on the award of County contracts, looks beyond the small percentage of A & E contracts that would be subject to the MWBE programs, thereby limiting (at least in this respect) the potential for skewed results. A. STATISTICAL EVIDENCE 1. The Study Dr. Carvajal attempted to identify and measure potential gender and ethnic disparities in the fields of architecture, structural engineering, and civil engineering, and, if such disparities existed, to determine whether they could be attributed to discrimination. His analysis applied geographically to Miami-Dade County and was developed along two paths of inquiry. One explored the nature and distribution of awards issued by the County during the period of 1995-1999. The other probed the marketplace conditions experienced by A & E firms. The study used four data sets. Three were designed to establish the marketplace availability of firms — one set each for architecture, structural engineering, and civil engineering. The fourth focused on awards issued by the County. Dr. Carvajal first tried to identify the “universe” of firms competing in each market. He did so using the local 1999-2000 Bell South telephone directory, a list compiled by in-foUSA, and a list of firms registered for technical certification with the County’s Department of Public Works. Additionally, for architecture firms only, Dr. Carvajal utilized a list of firms which had been issued an architecture professional license. Dr. Carvajal and his staff conducted a telephonic survey in an attempt to obtain information from each firm in each of the three markets. The data solicited in the survey included the firms’ gender/ethnic classification, capacity/experience input variables (i.e., number of years in business, number of employees, and number of architects/engineers), and annual volume of business as a measure of performance. At least three attempts were made to contact each -firm by telephone. The outcome of the survey revealed a response rate of around 65%. The data was further enhanced by information provided by some of the firms to the County. Firms that wish to be considered for County awards must, as noted earlier, be technically certified by the Department of Public Works prior to bidding for any project. Certification takes place after the firm demonstrates that it possesses the technical capability and expertise to carry on a project in a particular specialty. This involves, among other things, filling out an annual application form which contains questions pertaining to firm characteristics. Dr. Carvajal used some of this information in his study, including certification information and capaeity/experience indicators (i.e., number of years in business, number of technical employees, and number of architects/engineers). The County’s Department of Business Department further classifies firms as WBEs, BBEs, HBEs, or none of the above. These classifications do not necessarily coincide with the gender and/or ethnic group of the firm’s owner identified in the survey. To qualify as an MWBE, firms need to meet certain other criteria, such as an upper-revenue limit. Only firms classified as MWBEs are eligible to bid for projects earmarked as “set aside” for women- or minority-owned business enterprises. Despite these qualification criteria, Dr. Carvajal’s study determined a firm’s gender/racial/ethnic classification by the firm’s response to the survey. The award data set was developed from a list of awards issued by the County from 1995 to 1999. The data from this source included the date and amount of the award, whether or not “set aside” or “goal participation” conditions existed, and an identification of the selected prime consultant. The empirical findings of the study were presented in two parts. The first, .part consisted of five sets of tables showing various indicators of parity or disparity by gender, racial, and ethnic group.- The second part dealt with regression analyses, which attempted to quantify the impact of the gender and/or ethnic disparities attributed to discrimination. Dr. Carvajal determined that the analysis of award data could not be truly reliable. He reasoned that this was due to the small number of firms available for observation in this setting. Accordingly, he concentrated his analysis on the information obtained through the survey relating to each firm’s annual volume of business in the overall marketplace. According to the survey, 13% of all identified architecture .firms are owned by women, and they account for 2.2% of the annual volume of business. Black-owned firms represent 3.9% of the identified architecture firms, and they account for 0.9% of the annual volume of business. Hispanics own 50.2% of architecture firms, but account for only 17.7% of the annual volume of business. Similar disparities were shown for both structural and civil engineering firms. From this information, Dr. Carvajal concluded that “[ojbvious disparities exist between percentage of firms and percentage of annual volume of business of women- and minority-owned firms.” ' Defendants’ Exh. 48 at 7. He also determined that neither the removal of “outliers”— large, often public owned firms whose annual volume of business was beyond the 99th percentile — nor controlling for capacity and experience substantially, changed his conclusions. Dr. Carvajal conducted regression anal-yses in order to determine the effect a firm owner’s gender or ethnicity had on certain dependent variables. As discussed above, when he used amounts awarded by the County as the dependent variable, the results were unreliable because the “empirical evidence from the awards regression equations [was] ambiguous and encumbered by a limited pool of observation units.” Id. at 16. When using a firm’s annual volume of business as a dependent variable, however; Dr. Carvajal found that the disparities present in.each of the three specialty areas were due to the firm’s gender/ethnic classification. He went on to perform variants of the equations in order to further bolster his conclusions. He performed the equations (1) using certification rather , than survey data for the experience/capacity indicators, (2) with the outliers deleted, (3) with publicly owned firms deleted, (4) with the dummy variables reversed, and (5) using only currently certified firms. His results remained substantially unchanged using each of these variants. Based on this analysis of the marketplace data, Dr. Carvajal concluded, in sum, that a large part of the gross statistical disparities observed in the annual volume of business levels of women- and Hispanic-owned firms can be attributed to discrimination. The statistically significant regression coefficients of the dummy variables throughout the marketplace equations indicate that women- and Hispánic-owned firms experience lower levels of volume of business than do non-women- and non-Hispanic-owned firms, respectively, even after adjusting for the presence in the equation of firms’ years in business, number of employees, and/or number of architects/engineers. Thus, the adverse effects of gender and Hispanicity [sic] are manifested in the sign and values of the regression coefficients and cannot be attributed solely to differences in firms’ capacity/experience. The discrimination indices projected from the regression estimates are evidence of gross statistical disparities in annual volume of business. Id. at 25. Dr. Carvajal did not find sufficient evidence of discrimination against blacks. 2. Analysis The critical questions are whether Dr. Carvajal’s study constitutes a “strong basis in evidence” of discrimination to justify the continuance of the race/ethnic-conscious measures under strict scrutiny, and whether it constitutes “sufficient probative evidence” of discrimination to justify the continuance of the gender-conscious measures under intermediate scrutiny. As to each of these questions, the answer is no. Initially, ! find — and it is essentially uncontested — that there is no disparity indicating any underutilization of MWBEs or of minority-owned firms in the award of contracts by the County itself for A & E services, nor is there any significant unde-rutilization of MWBEs in the contracts-they were awarded. Dr. Carvajal’s analysis of the County awards data corroborates the County Manager’s conclusion that parity has been reached insofar as County awards and dollars are concerned. Indeed, the results of Dr. Carvajal’s analysis of the award data led him to conclude that the “awards approach is a dead end, and the relevant scope of analysis is the marketplace, using annual volume of business as the dependent variable.” Defendants’ Exh. 48 at 22. If anything, the data indicates an overutilization of minority-owned firms by the County in relation to their numbers in .the market or their capacity. This is consistent with the information given to the Commissioners by the County Manager in late 1998 and early 1999. . I will, therefore, turn to the analysis of the marketplace data and the results of that aspect of Dr. Carvajal’s study. Based on the study, the County has conceded that the evidence of discrimination against blacks is insufficient to support the BBE program. I, therefore, need look no further into that aspect of the data or analysis. The County’s BBE program in the A & E industry is unconstitutional under the strict scrutiny standard, and will be permanently enjoined. The remainder of this analysis will focus on the constitutionality of the HBE and WBE programs. As discussed in the previous section, Dr. Carvajal conducted a telephonic survey to gather data for the marketplace aspect of his study. Using this data, found at Plaintiffs’ Exhibits 90 and 91, it is possible to derive information about the characteristics of the firms. This information indicates that the data upon which Dr. Carvajal relied in concluding that disparity exists in the A & E industry as to Hispanics and women is both unreliable and inaccurate. There are several reasons for this conclusion, and I discuss them below, understanding that the failure to control for particular variables generally “will affect the analysis’ probativeness, not its admissibility.” Bazemore v. Friday, 478 U.S. 385, 400, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986). (a). The Data Fails to Properly Measure the Geographic Market The data Dr. Carvajal gathered in an attempt to measure firm participation in the Miami-Dade County market for the three separate services (architecture, civil engineering, and structural engineering) is both over- and under-inclusive. It is over-inclusive in that it fails to exclude from the annual volume of business figures — the all-important dependent variable — amounts earned in markets outside Miami-Dade County by the surveyed firms. It is under-inclusive in that it fails to include some firms from neighboring counties which provide A & E services in Miami-Dade County. The over-inclusiveness stems from Dr. Carvajal’s practice of defining a firm’s annual volume of business by its total receipts. No attempt was made to limit the number to the volume of business done in Miami-Dade County, and a firm providing architecture or engineering services in another county or state had receipts from that business included in its annual volume statistic. See Trial Transcript at 870-72. This creates a serious problem, because the County- must show a strong basis in evidence of past or present discrimination within its own geographic boundaries in order to sustain its MWBE programs. See Sherbrooke Turf, Inc. v. Minnesota Dept. of Transportation, 345 F.3d 964, 970-70 (8th Cir.2003). If the evidence is skewed by the inclusion of extra-County volume of business data, its reliability and accuracy for this purpose is undermined. The under-inclusiveness results from Dr. Carvajal’s reliance on County certification in compiling his firm list. A firm with an office in neighboring Broward County, for instance, although perhaps not certified in Miami-Dade County — because it had not sought to do work for the County itself could still do work in the County and generate some volume of business there. This income, however, would not be included in the County’s numbers. Thus, Dr. Carvajal’s marketplace analysis is incomplete. Additionally, the volume figures fail to account for revenue received as, or paid to, subcontractors or subconsultants. In A & E contracting, up to 50% of a project’s total dollar amount is paid to subconsul-tants. Not accounting for. this aspect of annual volume results in a distortion of the volume figures. The plaintiffs’ expert, Dr. John Lunn, concluded that this was “a serious flaw. If firms differ in the extent to which they work as a prime or as a sub, and in the extent to which they utilize subs when they are the prime consultant, then the dollar values used in this measure are' not comparable.” Plaintiffs Exh. 100 at 14. On the record before me, I agree with Dr. Lunn’s conclusion. (b). The Data Fails to Properly Measure the Product Market In addition, the annual volume figures fail to accurately measure the three product markets analyzed in the study: architecture, civil engineering, and structural engineering. For firms providing services in multiple markets, Dr. Carvajal reported the total volume of the firm in each of these markets. See Trial Transcript at 604-05. For example, if a firm generated an annual volume of $100,000 from architectural services and $15 million from civil engineering services, its annual volume of business was reported as $15,100,000 in both the architectural and engineering data sets. Thus, the total volume in each of the product markets is clearly overstated. Moreover, each of the product markets has distinct submarkets which should be treated separately. Steve Spratt, a senior assistant to the County Manager, testified as a person familiar with the process of selecting architects and engineers for County projects. Mr. Spratt explained that an important criterion in the selection process is the firm’s expertise in the particular kind of work being done. See Trial Transcript at 148. This testimony, corroborated by Hershell Gill, the owner of Her-shell Gill Consulting, see Trial Transcript at 447-49, reveals that not all architects and engineers included in the survey are qualified to compete for all projects. While some of-the larger firms may be able to compete across the board, many of the smaller firms are limited in the range of jobs for which they may submit responses. Dr. Carvajal, however, treated all firms as “willing and able,” i.e., “qualified,” to perform all work within their product market. See ' Trial Transcript at 705. Once again, this renders the annual volume of business figure unreliable and inaccurate. (c). The Marketplace Data Survey Is Unreliable Perhaps the most glaring problem with the study is the unreliability of the survey data which formed the basis for Dr. Carva-jal’s conclusion that discrimination was and is present in the Miami-Dade County A & E market. This unreliability is particularly apparent in the most crucial component of the study — the annual volume of business data. Questions in a survey must be clear, precise, and unbiased. See generally FedERAL JUDICIAL CENTER. REFERENCE MANUAL on SCIENTIFIC Evidence 248-49 (2nd ed.2000). As the Supreme Court has explained, see Ramdass v. Angelone, 530 U.S. 156, 172-73, 120 S.Ct. 2113, 147 L.Ed.2d 125 (2000), courts have the authority to exclude or minimize survey results which are deficient. This is one of those cases in which a survey is not persuasive due to deficiencies. See Bazemore, 478 U.S. at 400, 106 S.Ct. 3000. Counsel for the plaintiffs asked Dr. Car-vajal about the phrasing of survey questions during cross-examination: Q. Do you believe that the questions in your survey were framed to be clear, precise, and unbiased? A. All probably with the exception of annual volume of business. Q. And that was somewhat ambiguous and could have been interpreted in different ways by the respondents? A. That is correct. And it was purposely designed that way so as not to raise the sensitivity of the respondents, and then it would be the interviewer that would try to do most of the talking in terms of eliciting a response. Trial Transcript at 770. Survey respondents were simply asked to give a number for their firm’s annual volume of business. It could not be clear to the respondent whether the question sought gross volume, net volume, construction volume, Miami-Dade County volume, volume for a particular product market, etc. Yet the responses to this ambiguous survey question formed the entire framework for Dr. Car-vajal’s study, and apparently had a- substantial effect on the data givén the inexplicably wide range of volume reported in the survey. I will not attempt to catalog every aspect of the survey results which indicates that the data is unreliable. Instead, to show why I find the survey and study unpersuasive as the trier of fact, I will highlight a few of the most troublesome results as examples of the overall problem within the data set. First, 11 engineering firms which appear in both the structural and civil engineering pools have been certified by the Department of Public Works and report that they have two structural and two civil engineers. The business volume reported by these 11 presumably comparable firms ranges from $250,000 to $423 million. This extraordinary difference cannot be attributed to discrimination, as the non-minority-owned firms in this group — presumably not subject to any discrimination — -range in reported volume from $300,000 to $423 million. It is impossible to determine which, if any, of these volume figures is accurate. Additionally, because Dr. Car-vajal admitted that he did not check the data for accuracy, see Trial Transcript at 600, I cannot determine if the errors were consistent across all the firms. This unexplained wide variation in volume calls all the data into question, because Dr. Carva-jal’s study was based on the annual volume reported in the survey. Second, 19 structural engineering firms reported to the Department of Public Works that they have only one engineer. Nonetheless, the range of business volume reported in the survey by these one-engineer firms is between $45,000 and $100 million. Similarly, there were 37 civil engineering firms which reported only one engineer to the DPW. These one-engineer firms range in business volume from $100,000 to $500 million. I find it difficult, if not impossible, to believe that one structural engineer is generating $100 million in annual volume and one civil engineer is generating $500 million. The County and the intervenors argue that these high volume figures were removed when Dr. Carvajal ran a variant of his regression equations with “outliers” deleted. The problem, however, is not with the inclusion of the high volume firms, but with the overall reliability of the volume data set.' The County and the intervenors might also argue that since the volume figures were taken from the survey results, the number of engineers should also be taken from those results, rather than from the County’s records. Even doing so, however, does not eliminate the variances. For example, six firms engaged solely in structural engineering reported having two structural engineers in their survey responses. These firms ranged in volume from $170,000 to $300 million. These variances persist throughout the survey responses, and are completely unexplained. In fact, when examining solely the women-owned or Hispanic-owned firms, the variances remain. Nine women-owned firms appearing in both the structural and civil engineering pools report one structural and one' or two civil engineers. The business volume range of these firms is between $40,000 and $30 million. Moreover, 15 Hispanic-owned firms appear in both the structural and civil engineering pools. These firms range in reported volume from $40,000 to $30 million as well. The wide discrepancies also persist throughout the architectural pool. These unexplained, obvious problems with the annual volume data render the entire study-unreliable and inaccurate, and unpersuasive to me as the fact-finder under the strict scrutiny and intermediate scrutiny standards. The problem becomes quite apparent when one recognizes that Dr. Carvajal used the number of employees and number of professionals in a firm as proxies for measuring capacity. In doing so, he assumed that each employee and professional had a substantially similar effect on productivity. The numbers, however, belie that assumption. For example, employee productivity in the architectural firms ranges from $248 per employee (CH2M Hill, ID# 553), to $19,230,769 per employee (Pierce, Goodwin, ID# 600). Architect productivity in these firms ranges from $20,000 (Eric Maspons, ID# 353) to $175 million (Rochlin, ID# 604). These problematic variances are present throughout the entire study, whether using employees or architects, survey results or County data, or looking at architecture firms, or structural or civil engineering firms. In my view, the annual volume figure is creating these wide and unexplained variances, and calling into doubt the reliability of the entire study. One last problem with the data used by Dr. Carvajal serves to highlight the unreliability of the study, and explain why it fails to convince me. Seven architectural firms reporting significant annual volume on the survey actually said they had no architects. Similarly, 18 of the 204 civil engineering firms (about 9%) with significant annual volume reported having no civil engineers, and 19 of the 159 structural engineering firms reporting some volume (about 12%) reported having no structural engineers. Without architects or engineers, the volume reported by these firms cannot be (or at least cannot solely be) attributed to architecture or engineering. The County and the intervenors have offered no explanation for the problems apparent with the annual volume of business data. Tellingly, Dr. Carvajal admitted at trial that “[w]e do have some problems in the data.” Trial Transcript at 647. That, in my view, is a vast understatement. 3. Conclusion Dr. Carvajal concluded in his study that there was a disparity in Miami-Dade County’s A & E industry between the percentage of women-owned and Hispanic-owned firms in the industry and their percentage of the annual volume of business. The survey results of the firms’ annual volume of business, which form the entire basis for the study and for Dr. Carvajal’s conclusion, are unreliable, inaccurate, and unpersuasive. First, the data is both over- and under-inclusive as to the geographic market. Second, the study fails to properly measure the product markets by including volume for all aspects of a firm into each category. Finally, the unexplained cavernous variances in the numbers for similarly situated firms cast grave doubt on the entire process of gathering and analyzing the data. Accordingly, the study does not constitute “sufficient probative evidence” under intermediate scrutiny, and certainly not a “strong basis in evidence” under strict scrutiny, of discrimination against women and Hispanics respectively. Because Dr. Carvajal’s conclusion that disparity exists is unreliable, it is not necessary to address the study’s conclusion that the disparity is caused by discrimination. One final matter warrants discussion. I have considered the Tenth Circuit’s decision in Concrete Works of Colorado, Inc. v. City and County of Denver, 321 F.3d 950 (10th Cir.2003), which the County says supports the constitutionality of the MWBE programs in the A & E sector. I do not, however, find Concrete Works persuasive. First, in the Tenth Circuit one who challenges an affirmative action program retains the ultimate burden of proving the program’s unconstitutionality, and this allocation of the burden of proof conflicts with Eleventh Circuit precedent. Compare Concrete Works, 321 F.3d at 959, with Johnson, 263 F.3d at 1244. Second, I believe the Tenth Circuit’s decision is flawed for the reasons articulated by Justice Scalia in his dissent from the denial of certiorari. See Concrete Works of Colorado, Inc. v. City and County of Colorado, - U.S. -, 124 S.Ct. 556, 557-60, 157 L.Ed.2d 449 (2003) (Scalia, J., dissenting from the denial of certiorari). B. Anecdotal Evidence In addition to the statistical evidence, the intervenors presented anecdotal evidence regarding discrimination in Miami-Dade County’s A & E industry. This anecdotal evidence was concerned exclusively with discrimination against women. There was no anecdotal evidence presented as to HBEs or BBEs. The intervenors presented the testimony of Lourdes San Martin, P.E., Laura Perez, AJA, and Lundy Clarke, P.E., at the preliminary injunction hearing. These women professionals provided representative accounts of their dealings with the County in seeking work they were qualified to perform. Ms. San Martin, a structural engineer since 1966, has worked on public projects in Miami-Dade County such as the James L. Knight Center and the mass transit Metrorail system. She has had her own engineering firm — the first such woman-owned firm in the County — since 1981. In 1983 her firm worked on a County project for a government parking garage through a joint venture -with a white-owned firm. She has always tried to get work from the County, but did not secure her next County job until 1986-87, when she worked as part of a team on a parking project at the Miami International Airport. She and her firm were treated badly in that project (e.g., being paid a small amount of money). She complained to the County, but nothing was done. These are the only two contracts she has received in about 19 years of bidding on no-measure County contracts, and she attributes this poor record to “institutional discrimination.” In 1996 or 1997, Ms. San Martin applied as a prime consultant on another parking project at MIA. She was disqualified because she did not subcontract 15% of the contract to WBEs, and another WBE was awarded the contract. After the enactment of the MWBE programs, her experience has been satisfactory. Her firm has grown from 10 to 30 employees, and has diversified so that now only one-third of its work is structural engineering. Ms. Perez is the majority owner of Laura M. Perez & Associates, an architecture firm. At the time of her testimony, the firm had been operating for just over 10 years. She testified that before the MWBE programs was enacted, her firm submitted 14 proposals for County projects and was not “short-listed” for any of them. She went on to state that since the programs were initiated, her firm had been “somewhat successful” in obtaining County set-aside projects. Ms. Perez described her firm’s success in the private sector as being prevented by a “block wall,” and said that most women-owned companies do not have the private sector to balance out their business. Ms. Clarke is a structural engineer practicing in Miami-Dade County. Her firm, C.R.A. Clarke, was founded in 1990. She testified that she was never “short-listed” for County projects, even though those projects were within her firm’s area of expertise. Ms. Clarke went on to describe various instances where she felt her firm was excluded from projects due to her gender. Nearly all of the anecdotal evidence related to discrimination in the award of County contracts. Dr. Carvajal’s study indicated, however, that no disparity exists in that aspect of the A & E industry. The anecdotal evidence, therefore, contradicts, or at least is inconsistent with, the statistical evidence in the study. In assessing the constitutionality of an affirmative action program, anecdotal evidence can be helpful, “but only when it [is] combined with and reinforced by sufficiently probative statistical evidence.” ECA, 122 F.3d at 925. The Eleventh Circuit has instructed that “anecdotal evidence can play an important role in bolstering statistical evidence, but that only in the rare case will anecdotal evidence suffice standing alone.” Id. This is not one of those rare cases. The statistical evidence presented in this case is unreliable and fails to establish the existence of discrimination. Thus, analyzing it on its own, I find that the anecdotal evidence presented fails by itself to meet the evidentiary standards necessary for satisfying the first prong of the intermediate scrutiny standard. This evidence does not even approach the level of the anecdotal evidence in ECA, where County employees themselves testified that the County’s practices allowed discrimination to persist. Even with that testimony before it, the Eleventh Circuit found such evidence insufficient to overturn Judge Rys-kamp’s findings. See id. at 924-26. The intervenors’ anecdotal evidence is insufficient in this case as well given the lack of probative evidence of the disparity necessary to satisfy intermediate scrutiny. I now address whether the HBE and WBE programs, respectively, are “narrowly tailored” or “substantially related” to the goal of remedying past and current discrimination. As explained below, they are not. IV. The Second Prong: “Narrow Tailoring” and “Substantial Relationship” Although all racial and ethnic preferences are subject to strict scrutiny, “Mon-text [nevertheless] matters” when reviewing such classifications under the Equal Protection Clause.” Grutter, 123 S.Ct. at 2338. The same goes for gender preferences. See, e.g., Hogan, 458 U.S. at 725-26, 102 S.Ct. 3331. Some observations about the County’s MWBE programs are therefore in order to preface the “narrow tailoring” and “substantial relationship” analyses. A. Minorities as Majorities Affirmative action programs like the ones here, and the challenges to them, generally arise in situations where the elected representatives of a (usually white) majority population choose to enact preferences of one type or another to benefit groups which are minorities. Use of race, ethnicity, or gender in such circumstances is seen by some, instinctively if not legally, as discrimination that is permissible because it is generally benign and not invidious. See, e.g., John Hakt Ely, The Constitutionality of Reverse Racial Discrimination, reprinted in On Constitutional GROUND 269 (1996) (“regardless of whether it is wise or unwise, it is not ‘suspect’ in a constitutional sense for a majority, any majority, to discriminate against itself’). The assumption — from those at both ends of the legal, political, and analytical spectra — has always been that affirmative action, by definition, favors those in the minority. Compare, e.g., Dinesh D’souza, The End of Racism 219, 290-91 (1995), with, e.g., Stanley Fish, There’s No Such Thing as Free Speech. .. and It’s a Good Thing Too 61 (1994). Like Croson, 488 U.S. at 495-96, 109 S.Ct. 706, this case does no