The California Supreme Court today upheld a 14-year-old voter initiative that bans government preferences for minorities and women.
The panel issued the ruling by a 6-1 vote in a case in which two construction companies challenged a San Francisco law that gave contract bidding preference to minority and women-owned businesses.
The initiative, enacted by California by voters in 1996 as Proposition 209, bars state and local governments from giving preference to women and minority groups in public-works contracts, employment and education.
It was previously upheld by a federal appeals court in 1997.
But the state high court had the power to rule independently on whether the initiative was constitutional, and today’s ruling was the first time the panel addressed that issue directly.
Sharon Browne, a Pacific Legal Foundation lawyer representing the two construction companies, said, “This is a major win for the voters who passed Proposition 209.
“It closes the final door on any attempt by people who don’t like Proposition 209,” Browne said.
The state high court rejected the city of San Francisco’s argument that the proposition places an undue burden on minority groups and women who seek laws that benefit them.
Because Proposition 209 was a state constitutional amendment, it can be changed only by another amendment.
The city’s argument was that while other groups such as locally owned businesses or veterans can legally obtain laws with bidding preferences, minority groups and women can do so only through a more burdensome constitutional amendment.
The argument is a type of constitutional challenge known as the “political structure doctrine,” claiming that a political structure sets up unconstitutional unequal treatment of different groups.
But the court said it agreed with the reasoning of 9th U.S. Circuit Court of Appeals, which said in 1997 that the political structure argument could not be used to defeat a broadly worded ban on preferences.
Justice Kathryn Werdegar quoted the 9th Circuit as saying, “The political structure doctrine does not invalidate state laws that broadly forbid preference and discrimination based on race, gender, and other similar classifications.”
Werdegar wrote, “Racial preferences are presumptively unconstitutional and tolerated only when narrowly tailored to serve compelling governmental interests.”
While upholding Proposition 209 in general, the court left a path open for the city to continue trying to defend its 2003 bidding preference law in San Francisco Superior Court.
The court said the city could try to prove its measure was necessary because of intentional past discrimination by the city itself.
Deputy San Francisco City Attorney Danny Chou said, “Although we are disappointed the court decided not to invalidate Proposition 209, we are pleased we will have an opportunity to demonstrate the ordinance is necessary as a remedy for the city’s past history of discrimination.”
But Browne, representing Coral Construction Inc. of Oregon and Schram Construction Inc. of Santa Rosa, said she thinks the city won’t be able to prove its case and that further proceedings would be a waste of resources.
“The court has put the hurdle so high I don’t think the city is going to make it,” Browne said.
The city’s 2003 law allows for preferences of between 5 and 10 percent for minority- and women-own businesses bidding on city contracts. It was suspended by a Superior Court judge in 2004.
The measure was one of a series of minority outreach laws enacted by San Francisco beginning in 1984 and revised in response to court rulings.
The city’s original law in 1984 provided for set-asides of specified percentages of public contracting dollars as well as bidding preferences for minority- and women-owned businesses.
After the set-asides were struck down by the 9th Circuit in 1989, the city revised its approach to eliminate set-asides but retain the bidding preferences.
