Metropolitan News-Enterprise


Thursday, April 19, 2007


Page 1


Appeals Court Rejects Equal Protection Challenge to Proposition 209




The First District Court of Appeal yesterday largely affirmed a San Francisco Superior Court judge’s ruling that the city’s Minority/Women/Local Business Utilization Ordinance violates the state Constitution.

In a 2-1 ruling, the Div. Four panel agreed with Judge James Warren, now retired, that the ordinance, as rewritten following passage of Proposition 209, violates the 1996 initiative. Proposition 209 prohibits the state from discriminating, or granting “preferential treatment,” on the basis of race, sex, color, ethnicity, or national origin in the fields of employment, education, or contracting.

The justices also rejected arguments that Proposition 209 is preempted by a treaty, ratified by Congress in 1994, that prohibits racial discrimination; that the measure violates U.S. Supreme Court decisions that bar a state from restructuring its political process to make it harder for members of one racial group to obtain beneficial legislation than it is for those in other groups; and that the ordinance is needed to maintain eligibility for federal funds and is thus expressly exempt from Proposition 209.

The panel did, however, reinstate a claim, it said the failed to rule on, that the measure is mandated by the Equal Protection Clause as a narrowly tailored remedial program to remedy pervasive discrimination in public contracting.

The revised ordinance, which was enacted in 1998 after more than 250 witnesses testified at a series of public hearings, required the city to give specified discounts to contract bids submitted by bidders who were certified as “women-owned business enterprises” or as “minority-owned business enterprises.” It also required bidders for certain contracts to document their good faith efforts to use MBE and WBE subcontractors.

Statute Reenacted

The ordinance, which had a five-year sunset provision, was reenacted without substantial change in 2003 after the Board of Supervisors concluded, again after a series of public hearings involving substantial public participation, that minorities and women continued to face discrimination “in City contracting and in obtaining contracts in the Bay Area that are not subject to affirmative action programs.”

Contractors, represented by the Pacific Legal Foundation, challenged the ordinance, seeking mandate, injunctive, and declaratory relief on the ground that it violated Proposition 209. While the challenge was initially rejected on standing grounds, the Court of Appeal reversed and sent the case back to the trial court for consideration on the merits, resulting in a permanent injunction barring the city from enforcing its law.

Justice Timothy Reardon, writing for the Court of Appeal, said that with the exception of his failure to rule on the equal protection/remediation issue, the trial judge was correct in all respects.

The federal-funding exception, Reardon wrote, does not apply because while federal regulations cited by the city permit the use of race-conscious remedies to ameliorate the effects of past discrimination in federally funded programs, none require it. The burden of proving that the exception applies, the justice added, is on the city.

Remedies Under Treaty

Nor, the jurist said, does the International Convention on the Elimination of All Forms of Racial Discrimination allow the city to ignore Proposition 209. Like the federal regulations, Reardon explained, the treaty permits race-conscious remedies for past discrimination, but by its terms does not require signatories to implement “special measures” implementing such remedies.

Reardon went on to reject the city’s reliance on the “political restructuring doctrine” set forth in Hunter v. Erickson (1969) 393 U.S. 385. That case involved an African American women who sued under her city’s fair housing ordinance, only to have the ordinance eliminated by a charter amendment that precluded the enactment of any fair housing ordinance without the approval of the voters.

The Supreme Court ruled that the amendment, while facially neutral, violated the Equal Protection Clause because it placed a “special burden on racial minorities within the governmental process.” The state, the high court said, “may no more disadvantage any particular group by making it more difficult to enact legislation in its behalf than it may dilute any person’s vote or give any group a smaller representation than another of comparable size.” 

The high court later applied the same principle in Washington v. Seattle School Dist. No. 1 (1982) 458 U.S. 457, striking down a Washington state initiative that purported to ban the use of long-distance busing to desegregate public schools, while permitting such use for other reasons, such as if the nearest school were unsafe or overcrowded.

Proposition 209, Reardon wrote, does not place a special burden on minorities or on women, but merely terminates their ability to obtain non-federally mandated preferences over white males, while preserving any such preferences to the extent that their elimination would “be in conflict with federal law or the United States Constitution.”

The justice reasoned:

“Unlike the laws struck down in Hunter and Seattle, there is a constitutional symmetry to [Proposition 209.]  Its dual prohibition against discrimination and preferential treatment, coupled with the savings clause, propel [that measure] into neutral territory that brooks no impermissible racial classification.”

Justice Patricia Sepulveda concurred in the opinion, but Justice Maria Rivera dissented, vigorously arguing that Proposition 209 violates Hunter and Seattle.

There is “no doubt,” the dissenting justice wrote, that Proposition 209 “was engendered not by opposition to all preferences, but by opposition to preferential treatment for racial minorities and women.” Such opposition, Rivera wrote, “is no different in kind from the motivations of those who opposed busing for racial purposes only in Seattle.”

The case is Coral Construction, Inc. v. City and County of San Francisco, A107803.


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