Decision interprets scope of Proposition 209
By Janet Dang
The state Supreme Court last Thursday unanimously upheld a lower court decision that overturned a San Jose ordinance requiring government contractors to solicit bids from companies owned by women and minorities.
The move is major set back for affirmative action supporters who sought to mandate preferential outreach programs to minorities and women for government contracting jobs, employment and school university admissions post-Proposition 209.
The high court said the city law is unconstitutional because it violates the voter-approve initiative, which in 1996 amended California’s constitution and banned state government from “discriminat[ing] against or grant[ing] preferential treatment to any individual or group on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education or public contracting.’’
Proposition 209, approved by 54 percent of voters, prohibited preferences for women and minorities in state and local contracting, employment and education. It did not define “preferences,’’ but its sponsors focused their campaign attacks on quotas, set-asides and other measures that gave groups advantages in selection.
The San Jose ordinance requires city construction contractors, on contracts over $50,000, to meet set goals for minority and women subcontractors. Firms that do not meet those goals had to conduct specific outreach to and good faith negotiation with subcontracting firms. Specifically, the ordinance required them to contact at least four subcontractors owned by women or minorities, negotiate with them and accept their bids or explain why they were rejected.
The ordinance was challenged by Hi-Voltage Works, a Rancho Cordova, Calif., company that submitted a low bid of $197,000 on a circuit switcher for a San Jose sewage treatment plant in 1997. It was rejected because the company did not reach out to minority or female contractors to help with the project.
San Jose officials argued that the city’s practices were not covered under Proposition 209.
The Sacramento-based Pacific Legal Foundation, which represented Hi-Voltage, last year surveyed 100 cities, counties and school and emergency districts and found “scores with programs that were questionable under Proposition 209,’’ according to attorney Harold Johnson.
At the core of the case was whether Proposition 209’s ban on race and gender preferences is violated by recruiting and outreach efforts even though they don’t guarantee favorable treatment in bidding or hiring.
Justice Janice Rogers Brown, the high court’s sole black member who wrote the majority of the 40-page opinion, opens it with a citation from the Declaration of Independence and touches on the Dred Scott decision, in which the U.S. Supreme Court denied citizen status to blacks, and touches on other decisions including Plessy v. Ferguson and Brown v. Board of Education.
“We can discern ... the voters’ intention only by interpreting this language in its historical context,” she wrote. “It is clear the voters [who approved Proposition 209] intended to adopt the original construction of the Civil Rights Act and prohibit the kind of preferential treatment accorded by this program.’’
The court ruling was, indeed, the first to interpret the scope of outreaching allowed by the state since the ban on racial preferential treatment.
“There are programs that seek to level playing the playing field in California. [The decision] may have an impact on those programs through out the state,” said Oren Sellstrom, an attorney at San Francisco’s Lawyers Committee for Civil Rights.
The decision, however, is not expected to directly affect San Francisco’s minority-based contracting agreement, Sellstrom said.
“San Francisco has compiled a mountain of evidence that shows discrimination, unfortunately is still alive and well in its public contracting system. The city has consistently stated that federal law requires that they take action to dismantle discriminatory system.”
“The decision does not affect San Francisco directly. Where there’s federal grounds that mandate a city take a certain action, state law cannot override that,” Sellstrom said.
Since 1984, San Francisco has invoked city ordinance 12-D, which requires outreach, discount bidding and in extreme cases, set-aside contracts reserved for minority- and women-owned firms.
According to a 1998 study by Mason Tillman Associates, which examined city contracts granted between 1992 and 1995, glaring disparities still exist.
Asian American contracting firms, while making up more than 20 percent of all available contractors, received only 3 percent of the $1.03 billion the city doles out in contracts. African Americans, who represented 1 percent of the firms, received only 1.4 percent of the dollars. Though less than one in two firms were owned by white men, those companies received almost 90 percent of the dollars in 1992 through 1995.
Khin Mai Aung, an attorney at the Asian Law Caucus — which with affiliates from the National Pacific American Legal Consortium, Asian American Legal Defense Fund, and Asian Pacific American Legal Center— had earlier this year filed an amicus brief in support of San Jose, expects to see more lawsuits challenging other outreach programs throughout the state.
“The decision does not directly affect contractors outside of public contracting, however, it is likely that opponents of affirmative action will seek to use [this decision] to dismantle permissible affirmative outreach programs in the public employment and education area as well,” she said.
She also added that if San Jose were to implement permissible outreach programs, for example, those that not only included outreach to minority- and women-owned contractors, but white-owned as well, anti-affirmative advocates could still use the case to bring down such programs based on the court decision.
Sellstrom noted that not all outreach and affirmative action programs were banned by the ruling. “Several of the justices made it clear that their decisions put extra duty on cities and counties to ensure that their outreach in employment, education and public contracting are fair and broad-based, and should be done aggressively … to encompass all sorts of business including minority- and women-owned,” he said.
The ruling indeed mandates cities and counties to monitor and compile statistics showing where contracting opportunities are.
“If there are data that clearly show disparities exist, that federal laws are violated, then enforcement agencies and civil rights advocates need to bring these discriminating acts to federal courts,” Sellstrom said.
Associated Press contributed to this report. |
