Metropolitan News-Enterprise


Tuesday, August 4, 2010


Page 3


Supreme Court Turns Down Challenge to Affirmative Action Ban


From Staff and Wire Service Reports


The California Supreme Court yesterday turned down a challenge to the public contracting provisions of Proposition 209, the state constitutional restriction on race- and gender-based affirmative action programs enacted in 1996,

In a 6-1 ruling, the high court rejected arguments from the City and County of San Francisco and Attorney General Jerry Brown, as amicus, that the initiative, which has been previously upheld by the high court, violates the U.S. Supreme Court’s “political structure” doctrine.

San Francisco enacted a new affirmative action ordinance in 2003, replacing one that had been previously challenged by white contractors.

While acknowledging that the new ordinance contained race- and gender-based preferences of the type generally banned by Proposition 209, the city argued that the ordinance should be upheld under the political structure doctrine, under the initiative’s exception allowing preferences mandated as a condition of federal funding, or as a constitutionally required remedy for past discrimination.

The political structure doctrine, an aspect of judicial interpretation of the Equal Protection Clause, prohibits a state or local government from creating political barriers to equality. San Francisco argued that Proposition 209 does that because it allows preferences for some groups, such as veterans, but not for racial minorities or women.

Justice Kathryn Werdegar, writing for the court, disagreed, saying there was an “important difference between initiatives obstructing equal treatment and initiatives banning preferences.”

An attorney for the contractors hailed the decision.

“As the court recognized, Proposition 209 is a civil rights measure that protects everyone, regardless of background,” Sharon Browne, a lawyer for the Pacific Legal Foundation, said. “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 also rejected the federal-funding argument, saying the federal programs cited by the city only permit, and do not require, race- and gender-based preferences and thus fall outside the exception.

The high court did say, however, that the case must go back to the trial court for further consideration of the city’s claim that its own past discriminatory practices require that the affirmative action program be implemented as a remedy under supreme federal law.

Werdegar wrote:

“[T]o defeat plaintiffs’ motion for summary judgment, the City must show that triable issues of fact exist on each of the factual predicates for its federal compulsion claim, namely: (1) that the City has purposefully or intentionally discriminated against MBE’s and WBE’s; (2) that the purpose of the City’s 2003 ordinance is to provide a remedy for such discrimination; (3) that the ordinance is narrowly tailored to achieve that purpose; and (4) that a race- and gender-conscious remedy is necessary as the only, or at least the most likely, means of rectifying the resulting injury. If any of these points can be resolved as a matter of law in plaintiffs’ favor, it follows that the City cannot establish federal compulsion and that plaintiffs are entitled to summary judgment.”

Justice Carlos Moreno dissented, writing that it’s unfair to explicitly single out minorities and women while other special groups continue to enjoy preferential treatment in school admissions and elsewhere.

“In the wake of Proposition 209, veterans, the economically disadvantaged, the physically disabled, children of alumni, in-state residents, etc., all may continue to seek, obtain, and benefit from preferential legislation as before,” Moreno wrote. “The same is no longer true for those seeking race- and sex-conscious legislation.”

Another challenge to Proposition 209 on different legal grounds is pending after being filed in federal court earlier this year.

The pro-affirmative action group known as By Any Means Necessary is seeking to invalidate the law by arguing that minority students and their parents are unfairly restricted by state admission policies that can’t take into account race or gender but consider other factors.

The case is Coral Construction, Inc. v. City and County of San Francisco, 10 S.O.S. 4451.


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