A statewide voter initiative passed 14 years ago to ban government preferences for minorities and women came before the California Supreme Court today in arguments over a San Francisco contracting law.
The case weighed by the high court justices at a hearing in San Francisco includes a claim by the city that the initiative, Proposition 209, violates the U.S. Constitution.
The dispute, which stems from lawsuits filed by two construction companies, is the first time the court has directly considered whether the measure enacted in 1996 is constitutional.
Proposition 209 bars state and local governments from giving preferences based on race or gender in public contracting, employment and education.
But the court could also avoid the constitutional question and decide the case on a narrower ground.
The narrower issue is whether San Francisco’s contracting law fits into an exception allowed in Proposition 209 for programs needed to meet federal anti-discrimination standards.
The San Francisco law, passed in 2003, allows for preferences of 5 to 10 percent for minority- and women-owned businesses bidding on city contracts. The city claims it is justified by past discrimination by city staff and prime contractors.
“San Francisco understands quite clearly that race-conscious methods are a last resort,” Deputy City Attorney Sherri Kaiser told the court today.
“This is something San Francisco is doing because it believes it is necessary and there is no other way to protect citizens’ rights,” she said.
Sharon Browne, an attorney for Schram Construction Inc. of Santa Rosa and Coral Construction Inc. of Oregon, contended the city should address the alleged bias by disciplining city workers who award contracts.
“It’s not the purpose of Proposition 209 to allow the city to burden innocent victims of the discrimination,” Browne argued.
Justices Kathryn Werdegar and Carlos Moreno questioned whether Proposition 209 is constitutional because minorities and women are treated differently than other groups, such as with locally owned businesses that can legally be allowed preferences in city and county contracts.
Browne responded that Proposition 209 “doesn’t single out anybody.”
The court has three months to issue a written decision.