Wednesday, September 5, 2001
Court of Appeal Strikes Down State Affirmative Action Programs
By KENNETH OFGANG, Staff Writer/Appellate Courts
Several provisions of state law mandating the use of affirmative action to correct racial imbalances in contracting and employment were struck down yesterday by the Third District Court of Appeal.
Ruling on a suit that was begun by Gov. Pete Wilson and continued by University of California Regent Ward Connerly after Wilson left office, the court ruled that provisions of law affecting the community colleges, the State Lottery, the sale of state bonds, and the state civil service are unconstitutional.
The court left intact, however, certain provisions requiring reporting and collection of racial and gender data, saying they were permissible and severable from provisions that the court found illegal.
It also said that the State Personnel Board could take race or gender into account in adopting layoff and reemployment plans if it found it necessary to do so in order avoid re-segregation of the work force and if required to do so by federal law.
The suit dates back to early 1996, when Wilson challenged five statutes on grounds that they violated the state and federal equal protection clauses. After Proposition 209—which bans all racial preferences in state employment, education, and contracting—passed later that year, it became an additional basis for the litigation.
When first filed, the suit was derided as “Wilson v. Wilson” by opponents, who argued that the governor couldn’t sue to invalidate laws that he was required by reason of his office to enforce. But Connerly, the prime sponsor of the initiative, was permitted to join the litigation as a citizen, and the appellate court ruled yesterday that he was entitled to sue under the state’s liberal definition of standing.
In 1998, Sacramento Superior Court Judge Lloyd Connelly ruled that a law requiring specific outreach to woman and minority businesses in connection with state contracts was unconstitutional. But he upheld the other four laws, saying they were being constitutionally applied.
The four laws:
•Impose on the State Lottery an “affirmative duty” of maximizing participation in its contracting programs by “socially and economically disadvantaged small business concerns;” including women- and minority-owned businesses;
•Establish percentage goals for participation by women- and minority-owned firms in the award of contracts for professional bond services, and require that specific notices with regard to the bidding process for such contracts be sent to such firms;
•Require the State Personnel Board to establish affirmative action programs for all state agencies, including hiring goals and timetables for agencies where a specific group is underrepresented in proportion to its numbers within the general population; and
•Require community colleges to adopt affirmative action plans, including goals and timetables, for the hiring and promotion of minorities, women, and disabled persons.
Presiding Justice Arthur Scotland, writing for the Court of Appeal, said that all four of the laws have features that violate equal protection principles as interpreted by the U.S. Supreme Court in Richmond v. Croson Co., (1989) 488 U.S. 469, and Adarand Constructors, Inc. v. Pena (1995) 515 U.S. 200.
While “[g]overnmental entities remain under a duty to eliminate the vestiges of segregation and discrimination,” Scotland wrote, any attempt to do so by creating preferences based on group identity is subject to strict scrutiny.
The lottery statute, he said, fails the test because it provides that businesses owned and controlled by members of minority groups or women are presumed to be socially disadvantaged, while those who don’t fall into those classifications—“apparently only white males,” Scotland explained—must seek a determination by the Lottery Commission that they are similarly disadvantaged.
The commission, hasn’t established procedures to be followed in making those determinations, he added, nor has the Legislature provided for judicial review if a request is turned down.
“Even if such procedures were included in the statute, the fact that some individuals must prove disadvantage while others are conclusively presumed to be disadvantaged based solely on race, ethnicity, and gender, establishes impermissible race, ethnicity, and gender classifications,” Scotland wrote.
The jurist also rejected the argument that lottery officials have implemented the statute in a constitutional manner. Even assuming that to be true, he said, officials “lack the authority to cure a facially unconstitutional statute by refusing to enforce it as written.”
The bond statute, he went on to say, is unconstitutional because it gives members of one group a right to notice that members of other groups don’t have, and because it imposes upon bidders certain obligations with respect to identifying and reaching out to minority subcontractors that do not extend to other subcontractors.
The use of goals and timetables in the civil service and community college provisions also constitutes an impermissible preference, Scotland said.
The presiding justice did, however, reject Connerly’s argument that the mere requirement that race and gender data be collected is a racial preference prohibited by the equal protection clauses and/or by Proposition 209.
Data collection “can serve a number of important and valid legislative purposes,” Scotland said. It may, for example, lead to further inquiry as to whether specific discrimination is occurring, may assist the Legislature in determining whether to enact new “neutral” remedies, or may convince lawmakers that no new legislation is needed.
Jeffrey Bleich of the San Francisco office of Munger, Tolles & Olson, who argued on behalf of groups defending the affirmative action measures, said he was pleased with the ruling on data collection.
“Connerly was overreaching,” Bleich told the METNEWS. “He thinks society should be not only race-blind, but race-ignorant.”
Connerly has been pushing a Racial Privacy Initiative, which would prohibit all collection of race- and gender-data by the state and eliminate racial identification from all government forms.
But unlike with Proposition 209, he has not received financial backing from the California Republican Party, and he recently announced he would seek to place the measure on the ballot in November of next year, rather than on the March primary ballot.
Bleich said he did not know whether his clients would seek Supreme Court review.
Connerly was represented by attorneys from the Pacific Legal Foundation.
“We are heartened by this strong ruling for equal rights,” PLF Senior Vice President Anthony T. Caso, who argued before the Court of Appeal, said in a statement. “The court recognized that Prop. 209 bars government from discriminating by race or sex, even if government tries to cloak its discrimination in euphemisms such as ‘goals and timetables.’”
The case is Connerly v. State Personnel Board, 01 S.O.S. 4539.
Copyright 2001, Metropolitan News Company