Pacific Legal Foundation

PLF Warns CA High-Speed Rail Against Quotas

by lbarber on 11/09/2011

in Pacific Legal Foundation,Quotas

We’re all aware of how fond California lawmakers are of introducing and passing bills that give government-mandated special favors to certain racial and ethnic minorities, despite a 15-year-old voter-approved law that bars the practice.

The Pacific Legal Foundation (PLF), which raises legal challenges against government programs that violate the law barring racial preferences, issued a warning to the California High-Speed Rail Authority against taking the U.S. Department of Transportation up on its suggestion to award contracts based on race and sex.

“California voters made themselves crystal clear fifteen years ago when they passed Proposition 209,” PLF’s Sharon Browne said. “Government must be committed to equal rights and equal opportunities. It must not judge its citizens by their sex or skin color. Unfortunately, too many jurisdictions at all levels have balked at this requirement, and PLF has had to go to court time and again to enforce Proposition 209′s mandate for colorblind public policy. We hope that this unfortunate pattern won’t repeat itself with the High-Speed Rail Authority. We hope this agency won’t go off-track by ignoring the voters’ will and Proposition 209′s mandate for fairness and equal opportunities.”

In an eight-page letter (PDF), PLF points out what should be obvious to anyone in government who deals with contracting: the Civil Rights Act of 1964 prohibits discrimination in public contracting against all individuals, not just blacks and other preferred minorities. All individuals.

“No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

How the country evolved into “combating” racial discrimination with more racial discrimination is a long and twisted tale. Social engineers fear that without lowered standards, minority businesses would have no contracts at all. They don’t say that, of course. The sentiment is couched in PC “diversity” terms. In the letter, PLF cites a U.S. Commission on Civil Rights report that identified five race-neutral strategies to increasing minority participation in contracting:

  • Strictly enforce nondiscrimination laws in all facets of public contracting;
  • Increase knowledge about opportunities to contract with the government;
  • Provide education or technical assistant to impart business skills, knowledge of procurement, and strategies to win government contracts;
  • Provide financial aid or adjustments to offset the difficulties struggling firms encounter; and
  • Expand contracting opportunities and promote business development in underutilized geographic regions.

See? That didn’t hurt much, did it? Resorting to race should never be an option.

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PLE Sues State for Prop 209 Violation

by lbarber on 10/12/2011

in Pacific Legal Foundation

Despite a voter-approved law that bars the government from discriminating against or granting preferences to individuals or groups on the basis of race in employment, contracting, and education, the California Citizens Redistricting Commission is doing just that to select members. An excerpt:

“The statute governing selection of Commission members requires, among other things, that members ‘shall be chosen to ensure … racial, ethnic, … and gender diversity.’ (California Government Code section 8252(g)). The lawsuit asks that this provision be declared unconstitutional, and that race and sex be barred from being used to select Commission members in the future.

“The relief sought by the lawsuit is prospective only. It would apply only to future selection of Commission members, and would not invalidate any selections already made. The lawsuit does not challenge the maps that have already been produced by the Commission, and neither PLF nor the plaintiffs are involved with any effort to invalidate those maps.”

Proposition 209 has been challenged and upheld, but opponents continue to ignore it and do what the law was intended to stop. Could the statute’s language be any more clear?

“Using a person’s race, ethnicity, or sex to decide whether she can be appointed to a board or commis­sion isn’t just morally wrong, it is flat-out unconstitutional,” said PLF attorney Adam Pomeroy. “The Citizens Redistricting Commission has been entrusted with the enormous responsibility of drawing California’s electoral boundaries. The Commission will be a fundamental feature of California’s political structure for years to come, so its operations must be brought into conformity with California’s Constitution.”

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PLF Appeals Caltrans Set-Asides Case

by lbarber on 05/20/2011

in Judiciary,Pacific Legal Foundation

Despite the state’s ban on government discrimination and preferential treatment in employment, contracting, and education based on race or sex, the California Department of Transportation (Caltrans) set aside 6.75 percent of federal contracts for women, blacks, people of Asian-Pacific descent, and American Indians. The Federal Highway Administration approved the plan.

The Pacific Legal Foundation (PLE) sued Caltrans on behalf of a contractor. In February, a federal judge upheld the discriminatory program. PLE recently filed an appeal with the Ninth Circuit Court of Appeals.

“Our case against Caltrans’ unfair policies is straightforward,” PLF Principal Attorney Sharon L. Browne said. “Government should not discriminate or grant preferences based on race or sex. That’s a core constitutional principle. Although case law allows a deviation from this rule when required to remedy demonstrated, intentional discrimination in contracting, Caltrans has no evidence of such discrimination. So Caltrans has a constitutional duty not to base its contracting decisions on race and sex. Further, Caltrans has a duty to taxpayers. Especially in this time of tight budgets, when every tax dollar counts, Caltrans should be making decisions based on the lowest responsible bid.”

Duty to the taxpayer. Sounds almost quaint.

“Caltrans’ race- and sex-based quotas aren’t just unconstitutional, they’re fiscally irresponsible, driving up public-sector costs in a time of budget crisis,” Brown said. “When the agency awards contracts to parties that aren’t the lowest responsible bidders, by definition it is paying more than necessary for the project.”

Despite rulings like these, business do retain a measure of freedom from government coercion: stop doing business with red-tape, PC-hampered government. As long as companies with a certain number of employees do business with the government, the government can and will tell them what color their subcontractors must be until the people say “Enough.”

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Judge Knocks Down Prop. 209 Challenge

by lbarber on 12/09/2010

in Judiciary,Pacific Legal Foundation,Ward Connerly

Another victory for race neutrality in government!

Fourteen years after voters in California barred their government from discriminating against or granting preferences to individuals or groups in employment, contracting, and education based on race, the Coalition to Defend Affirmative Action, Integration, and Immigration Rights By Any Means Necessary (BAMN) is still trying to overturn the law.

Earlier this year the group filed suit and contended that California’s Proposition 209 “promised a ‘color-blind’ Constitution. But this was and is a lie…[It] has created a racial caste system in which the state’s most prestigious schools train mostly white students and students from some Asian backgrounds while admitting Latina/o, black and Native American students at only a third of their presence among the high school graduates of the state.”

Hyperbole much?

I’m pleased to report that a federal judge dismissed the lawsuit challenging the law’s constitutionality.

“This ruling is a powerful victory for fundamental rights,” the American Civil Rights Institute’s Ward Connerly said. “Everyone is owed a full measure of equal treatment, including applicants to the UC system, and all students. None of us should be classified by race or sex, by government. More than 14 years after Proposition 209’s enactment, it is time to move forward and fully implement that vital vision and goal.”

The fight for race neutrality is long, hard, and worth it. Once such measures meet overwhelming voter approval, the new laws faces legal challenges. Just imagine if groups like BAMN decided to forgo trying to overturn the vote and put that time, effort, and money into remedial, training, and other programs to help the people who think they can’t succeed without a thumb on the scale.

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Model Racial Preferences Brief

by lbarber on 08/05/2010

in Center for Equal Opportunity,Judiciary,Pacific Legal Foundation,Roger Clegg

The Pacific Legal Foundation‘s Sharon Browne and the Center for Equal Opportunity‘s Roger Clegg have created a model brief (31 pages PDF) for contractors and subcontractors who’ve been shut out of government contracts because of racial preferences.

Preferences proponents typically cite sentiment over the law to justify government discrimination. Black American’s ancestors were slaves, and blacks still living today were oppressed under Jim Crow. Until the “playing field” is level, they argue, the government should be allowed to consider race a hiring, contracting, and admissions qualification, as long as preferred minorities are not on the negative end of the discrimination.

The law is clear on the government’s use of race. It violates the Equal Protection Clause, which mandates that no state shall deny any person within its jurisdiction equal protection of the laws. It protects the rights of the individual, and racial classifications are group classifications. The question becomes, has the personal right to equal protection been infringed by the particular law? Race-based government action, therefore, receives the highest scrutiny by the judicial system. If the race-based measure is narrowly tailored to further a compelling government interest, it’s deemed constitutional.

Browne and Clegg outline the most important arguments against government racial preferences. An excerpt:

RACIAL CLASSIFICATIONS ARE PRESUMPTIVELY UNCONSTITUTIONAL UNDER THE EQUAL PROTECTION CLAUSE AND MUST BE SUBJECTED TO THE STRICTEST JUDICIAL SCRUTINY

[This section can be shortened based upon the knowledge and experience of the court.]

Decisions of the United States Supreme Court have made clear that distinctions between persons based solely upon their ancestry “are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 214 (1995) (quoting Hirabayashi v. United States, 320 U.S. 81, 100 (1943)). All racial classifications by government are “inherently suspect,” id. at 223, and “presumptively invalid.” Shaw v. Reno, 509 U.S. 630, 643-44 (1993). Accordingly, the core purpose of the Equal Protection Clause is to eliminate governmentally sanctioned racial distinctions. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 495 (1989).

Where the government proposes to ensure participation of “some specified percentage of a particular group merely  because of its race or ethnic origin, such a preferential purpose must be rejected . . . as facially invalid. Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids.” Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 307 (1978).

All governmental action based on explicit racial classifications are subject to strict scrutiny to ensure that the personal right to equal protection has not been infringed. Adarand, 515 U.S. at 227. Thus, before resorting to a race-conscious measure, the government must “identify [the] discrimination [to be remedied], public or private, with some specificity,” and must have a “strong basis in evidence” upon which “to conclude that remedial action [is] necessary.” Croson, 488 U.S. 8 at 500. And even where there is a compelling interest supported by a strong basis in evidence, the program must be narrowly tailored to further that interest. Id. at 506; Adarand, 515 U.S. at 238-39. Moreover, the Supreme Court does not single out hard quotas and set-asides for strict scrutiny. The Court refers generally to any racial classification, and any racially defined goal or target.

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California Supreme Court Upholds State’s Racial Preferences Ban

August 3, 2010

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 [...]

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California Court Voids Quota Law

July 6, 2010

Although California’s constitution bars the government from discriminating against or granting preferences to individuals or groups on the basis of race in government employment, education, or contracting, proponents of race-based policies still resist obeying the law. Last October, Governor Arnold Schwarzenegger, who swore to uphold the constitution, signed into law a bill that directs state [...]

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Defend California’s Proposition 209

June 17, 2010

Earlier this year I blogged about the Coalition to Defend Affirmative Action, Integration, and Immigration Rights By Any Means Necessary (BAMN) filing a lawsuit challenging Proposition 209, approved by 54 percent of California voters in 1996. The law bars the state from granting preferences to or discriminating against individuals or groups based on race in [...]

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California Supreme Court to Hear San Fran Preferences Case

May 4, 2010

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 [...]

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Sharon Browne on Voting Rights Case

June 17, 2009

The Pacific Legal Foundation‘s Sharon Browne talked about the Voting Rights case presently before the U.S Supreme Court on a Federalist Society podcast. Background: Decades ago, certain jurisdictions tried to keep blacks away from the polls. The infamous poll tax was one method. Over 40 years ago, Congress enacted a law (known as Section 5) [...]

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