Everybody’s blogging about it. Jerry Brown, California’s Attorney General, says the state’s ban against race and sex preferences is unconstitutional. (Source)
The California Supreme Court asked Brown to comment on Coral Construction v. City Of San Francisco, a case in which two contractors challenged San Francisco’s preferential treatment ordinance. The court will decide whether the ordinance violates California’s ban on preferences.
Download Brown’s 11-page letter (PDF).
Specifically, he contends that Proposition 209 violates the Equal Protection Clause of the Fourteenth Amendment, which declares that no state “shall…deny to any person within its jurisdiction the equal protection of the laws.” The ban against discrimination and preferential treatment ensures equal protection of the laws. So how does Brown rationalize his contention?
The U.S. Supreme Court turned the plain language of the Fourteenth Amendment on its head by finding a non-existent narrowly tailored/compelling interest doctrine among those simple, explicit words. Despite the straightforward mandate to not deny any person equal protection of laws, the Supreme Court fashioned a levels-of-scrutiny method to deciding cases. As long as a law is “narrowly tailored” to serve a “compelling” government interest, racial discrimination is permissible.
Unfortunately, the California Supreme Court likely will side with San Francisco. Last month, the same court ruled that Berkeley’s school district was not violating the law barring the state from discrimination and preferential treatment based on race by assigning students based on race, because the district didn’t show “partiality, prejudice, or preference” in assigning students by race. In other words, Berkeley discriminates against everyone, so the practice is okay.
The Pacific Legal Foundation‘s Sharon Browne told the Times that it would be “incredibly strange for the California Supreme Court, 13 years after Prop. 209 was adopted, to say at this time it is unconstitutional.”
I don’t think they’d declare it unconstitutional outright. They’ll simply interpret the amendment in a way that renders it ineffectual.
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