City Attorney Jim Messer has sent the Pensacola City Council a memo on a legal perspective on the proposed disparity study. Messer is clear that any race-based program is “presumptively unconstitutional in violation of the Equal Protection clause of the U.S. Constitution.”
The utilization of a disparity study is based on the case J.A. Croson Company v. City of Richmond (1989)Â which said race can not used as a criteria for awarding contracts unless the use of race was specifically intended to remedy identified, past discrimination.
According to Messer, “our federal circuit has not upheld a MBE (Minority Business Enterprise) program in the last two decades.”
An MGT disparity study, however, was accepted by the Fourth Circuit as evidence of disparities.
“The legal consequences of implementing a disparity study range from no exposure to being defendant in a lengthy lawsuit.”
And there is some risk for the council and mayor, according to Messer. “Some courts have denied qualified immunity to elected officials implementing a MBE program…”