California Supreme Court to Hear San Fran Preferences Case
Today, California’s highest court will hear arguments in Construction v. City Of San Francisco, a case in which two contractors challenged San Francisco’s preferential treatment ordinance.
Although California state law bars the government from granting preferences to and discriminating against individuals or groups based on skin color in hiring, contracting, and admissions, San Francisco mandates race-based and sex-based preferential treatment in contracting.
Last year, the court asked Jerry Brown, California’s attorney general, to comment on the case. He said, in essence, that California’s law barring preferential treatment is unconstitutional. Specifically, he contended 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.”
Brown’s response is based on judge-made law. 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 court fashioned a levels-of-scrutiny method to deciding cases. As long as the race-based practice is “narrowly tailored” to serve a “compelling” government interest, racial discrimination is permissible.
The Pacific Legal Foundation’s Sharon Browne, one of the lawyers challenging the ordinance, wrote in a statement:
“Government discrimination based on race and sex is wrong. In California, it also happens to be unconstitutional, thanks to Proposition 209. Proposition 209 leaves no room for government programs that mandate race-conscious actions. Yet that is what San Francisco wants to do. San Francisco wants to be allowed to discriminate. That’s why we’re at the California Supreme Court – to ask that San Francisco (and all other governmental entities in California) be barred from playing favorites by race and sex, and be forced to obey the state Constitution and basic principles of fairness, equality, and justice.”
Will San Francisco prevail? Likely. Last year, the California Supreme Court ruled that the Berkeley school district had not violated 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.
