by Lance T. Izumi, Fellow in California Studies
Pacific Research Institute
June 29, 1999

Announcer lead: Time for Perspectives. Lance Izumi says that a recent court decision will invalidate local affirmative action plans.

Last year, San Francisco officials approved an expansion of a city program which grants preferences to minorities and women in public contracting. This move defied Proposition 209, the voter-approved anti-race-and-gender-preference initiative, which is now part of the California constitution. Although city supervisors argued that there was legal basis for their action, a recent unanimous state appellate court decision undercuts their claims.

Specifically, the question over the San Francisco law revolves around whether the federal or state constitution determines the legality of a preference program. San Francisco officials believe that the U.S. Constitution's 14th Amendment, which guarantees equal protection before the law, allows for race-and-gender-based preferences. Thus, Proposition 209, according to this line of argument, doesn't apply.

Wrong, says the California Sixth District Court of Appeals. In a case involving San Jose's preferential outreach program in public contracting, the appellate court emphasized that Prop. 209 offers greater protections than the federal constitution. According to the court, under Prop. 209 all discriminatory treatment based on race and gender is prohibited. The fact that less demanding federal standards may have been met is therefore irrelevant. Further, even if federal constitutional analysis did apply, the court noted that the 14th Amendment outlaws virtually all race and gender preferences.

San Francisco officials argue, though, that their goal is simply to be more inclusive and to promote diversity. The court rightly points out, however, that Prop. 209 doesn't offer a loophole for discrimination based on a government's seemingly benign objectives. According to the court, it is conduct, not underlying intent, that determines whether a program is permissible under Prop. 209. Thus, if a program discriminates based on race or gender, regardless of motivation, it is a violation of state law.

The reality is that local governments in California continue to give official sanction to race and gender preferences. The courts are now saying that this practice must stop. It's about time.

With a perspective, I'm Lance Izumi.