Oct. 6, 2000
Affirmative Action Abolition
Hopefully, the California Supreme Court will render it unnecessary to amend Proposition 209 with the words, "We really mean it."
Harold E. Johnson
The Associated Press calls it "the most important civil rights dispute in many years to reach the [California Supreme] court." Hi-Voltage Wire Works v. City of San Jose, the subject of a widely monitored oral argument before the state's high court several weeks ago, marks the first time that the Supreme Court has been asked to interpret the scope of Proposition 209, the anti-discrimination initiative enacted by California voters in 1996.
On trial, in a sense, are the many jurisdictions around California that continue to balk at Proposition 209's ban on quotas, set-asides and other forms of racial and gender favoritism. A survey last year by the Pacific Legal Foundation found scores of cities, counties, school districts and utility agencies imposing racial preferences, in spite of Proposition 209's decree that government may not "discriminate against or grant preferential treatment to any individual or group on the basis of race, sex, color, ethnicity or national origin" in public employment, education or contracting.
One of the prime violators is San Jose, whose public-works contracting policies are challenged in Hi-Voltage. The case presents the issue of whether a public entity can get away with racial preferences by calling them "outreach efforts."
San Jose requires general contractors either to meet precise racial and gender quotas in the hiring of subcontractors or to undertake recruitment aimed only at minority and women subcontractors, whether or not those subcontractors are genuinely disadvantaged.
This is not outreach in the real sense; it does not reach out to the entire spectrum of subcontracting businesses. Rather, it requires favoritism for a narrow slice of the community, based on sex or skin color.
Encouragingly, at the Sept. 6 oral argument most of the justices seemed impatient with San Jose's slippery attempt to evade Proposition 209's mandate. Perhaps most forceful was Justice Joyce Kennard. She labeled one of the city's contracting rules an unconstitutional quota requirement. She also read from an article, penned before the initiative's enactment by University of Southern California law professor Erwin Chemerinsky, who has voiced opposition to Proposition 209, in which he warned that it would invalidate programs like San Jose's. Specifically, Chemerinsky understood the term preference to include "outreach programs to encourage women and minorities to apply for jobs, contracts or educational opportunities. Even if the ultimate decision-making process is color-blind, it is still a 'preference' under [Proposition 209] because more effort is made to encourage women and minorities to apply than men or whites."
Can government expand opportunities without running afoul of Proposition 209 by focusing on color or chromosomes? Of course. It can require that information about public-works projects be sent to all general contractors and subcontractors. It can set up telephone hot lines and advertise more. It can also run workshops to help businesses negotiate the complexities of the contracting process. The varieties of race-neutral initiatives are unlimited.
Attorney General Bill Lockyer chose this case to make his first-ever oral argument before the Supreme Court. But instead of standing up for Proposition 209 as one might expect the state's chief law enforcement officer to do, he tried to undermine it by arguing that the proposition permits San Jose's racially targeted policies. Lockyer claimed to be arguing on behalf of "the people," but he was not representing the millions who voted for the proposition.
The Clinton administration has also intruded in the case. The Justice Department filed a friend-of-the-court brief that tries to coach localities on getting around Proposition 209. It claims that if a local government alleges past discrimination, federal law may demand race preferences as a remedy. This argument is false, however. The U.S. Supreme Court has never mandated new discrimination as a response to old discrimination in the contracting field. Still, the administration is lending aid and comfort to all those jurisdictions that insist on acting as if Proposition 209 was written in disappearing ink.
U.S. Census figures show that whites are no longer a majority in California. When every racial group is a minority, aren't racial spoils systems more ludicrous and dangerous than ever?
Defining individuals by skin color and apportioning advantages on that basis are sure formulas for pitting people and groups against one other. This was the recognition underlying Proposition 209. Thankfully, however, there is hope that the Supreme Court will affirm the measure's mandate for a colorblind ethic in the public sector and force violators to cease and desist. It hopefully won't be necessary to amend Proposition 209 with the words, "We really mean it."
Harold Johnson is an attorney with the Pacific Legal Foundation.
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