For almost three decades, the city of San Francisco set aside a certain percentage of government contracts for businesses owned by minorities and women, claiming preferences were necessary to remedy discrimination against these groups. After the 9th Circuit Court of Appeals held the ordinance unconstitutional, the city eliminated the set-asides but retained bid discounts and other perks. Coral Construction sued the city on the grounds that the ordinance violated the state’s ban on race- and sex-based preferences.
Yesterday, the California Supreme Court agreed. In a 6-1 ruling, the court upheld the ban. (Download the 81-page opinion in PDF.)
Almost 14 years ago, over half the voters barred the government from discriminating against or granting preferences to individuals or groups based on race in employment, contracting, and education. Since then, opponents have tried to circumvent Proposition 209, and they will continue trying to circumvent Proposition 209.
Last month, a Sacramento Superior Court judge voided a law signed by Governor Arnold Schwarzenegger last year that directed state departments to award government contracts to the lowest responsible bidder subcontracting 15 percent of the work to minority-owned businesses and five percent to female-owned businesses.
In Coral Construction, the court rejected San Francisco’s argument that racial preferences are justified by past discrimination in contracting. And although Proposition 209 exempts state programs that are required to use preferences to remain eligible for federal funds, the court rejected the city’s argument that it qualified for an exemption. The court found that none of the federal regulations San Francisco relied on required the use of preferences.
“Today’s ruling, upholding Proposition 209, is a powerful victory for equal justice under law, and for the rights of all Californians, of every race and color,” Pacific Legal Foundation attorney Sharon Browne said. “As the court recognized, Proposition 209 is a civil rights measure that protects everyone, regardless of background. Under Proposition 209, no one can be victimized by unfair government policies that discriminate or grant preferences based on sex or skin color.”
The court remanded San Francisco’s claim that the U.S. Constitution’s Equal Protection Clause required the ordinance. If the city chooses to re-argue this issue, it will have to show that it “purposefully or intentionally” discriminated against minorities and women, that the ordinance was a remedy, that the ordinance was narrowly tailored, and that discriminating against people on the basis of race and sex is the only or most likely way to rectify the “injury.”
In other words, San Francisco must convincingly argue that purposefully and intentionally discriminating against non-minorities and men is necessary to rectify alleged discrimination against preferred minorities and women.
(Photo source: iStock)
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