Proposition 209 was strongly re-affirmed by the California Supreme Court on Nov. 30, 2000. This is a major victory for color-blind justice in California.
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California Cannot Be Based on Race or Sex, State Supreme Court Rules
Proposition 209 Finally Vindicated in Landmark Test Case
Sacramento, California; November 30, 2000: In a landmark decision today -- in a case brought by Pacific Legal Foundation--the California Supreme Court ruled that state and local governments seeking public works contracts cannot give minority- and women-owned firms preferential treatment under the guise of "outreach" without running afoul of Proposition 209 -- the California Civil Rights Initiative.
Enacted by state voters in 1996, Proposition 209 amended the state Constitution to prohibit state and local governments from discriminating against or granting preferential treatment to anyone on the basis of race or sex. The ruling arose out of a lawsuit filed in 1997 by the Sacramento-based Pacific Legal Foundation against the City of San Jose on behalf of a contractor whose firm, Hi-Voltage Wire Works, Inc., was denied a public contract despite being the lowest bidder.
Under San Jose's contracting program, general contractors either have to meet precise racial quotas in the hiring of subcontractors or undertake recruitment aimed only at minority subcontractors, whether or not those subcontractors are genuinely disadvantaged.
Today's decision marks the first time the California Supreme Court has interpreted the scope of Proposition 209 and carries major implications for thousands of state and local agencies throughout the state that require race and gender preferences and quotas in awarding public contracts, hiring and promoting government employees, and admitting students to government schools.
"The high court has made it crystal clear that government agencies in California cannot get away with racial preferences and quotas by deceptively calling them 'outreach'," said PLF attorney Sharon L. Browne, who argued before the state Supreme Court. "This decision removes the last remaining excuse for public agencies to ignore the will of the people."
Hi-Voltage was denied a contract to supply a circuit switcher for the city's sewage treatment plant. The city rejected the contractor's $198,760 bid in favor of a $202,314 bid by another firm because Hi-Voltage did not need subcontractors and intended to complete the project entirely with its own in-house work force. But, in order to comply with the city's illegal minority contracting program, San Jose tried to force Hi-Voltage to break down its contract work into subcontractable parts and either: (1) hire women and minority subcontractors in the percentages decreed by the city for the project; or (2) document recruitment efforts and "good faith" negotiations aimed solely at minority and women subcontractors.
After tracing back nearly 150 years of case law prior to the passage of Proposition 209, the state Supreme Court sided with PLF and held that, "Considering the entirety of our discussion, we remain persuaded the City's Program violates section 31 [Prop. 209]. Because the City rejects any bid that fails to comply with one or the other requirement, both of which are race and sex based, the essential structure of the Program discriminates on an impermissible basis against prime contractors that neither engage in outreach nor meet the evidentiary presumption, and it grants preferential treatment to those that do."
Today's ruling makes suspect race- and sex-based programs in other jurisdictions -- including those in the context of public education and employment.
A survey last year by PLF found scores of cities, counties, school districts and utility agencies defying Proposition 209 by imposing preferences based on race and sex. PLF has also filed lawsuits to enforce Proposition 209 in San Francisco (Cheresnik v. City and County of San Francisco; Coral Construction v. City and County of San Francisco); Sacramento (United Utilities, Inc. v. Sacramento Municipal Utility District); and Huntington Beach (Crawford v. Huntington Beach Union High School District).