SACRAMENTO, CA - Last week the California Supreme Court used Proposition 209 to strike down a government program based on race and gender preferences. The unanimous decision was of great interest, not only because it outlined the broad scope of voter-approved Proposition 209, which banned preferences statewide. The decision also showcased the boldness and acumen of Janice Brown, a rising star on the court who is gaining national notice.

Justice Brown, the court’s only black member, wrote the majority opinion--and an impressive piece of work it
is. The case involved a San Jose program that forced contractors bidding for city contracts to conduct
outreach to minority- and women-owned subcontracting firms and to solicit their participation in the
contractors’ bids. Contractors failing to take measures oriented to race and gender were rejected for city
projects, even if they submitted the lowest bid.

The San Jose program clearly violated Prop. 209, which says, “The state shall not discriminate against, or
grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or
national origin in the operation of public employment, public education, or public contracting.” In her
majority opinion, Brown observed that a race-and-gender-based participation goal “differs from
a quota or set-aside only in degree; by whatever label, it remains ‘a line drawn on the basis of race and
ethnic status’ as well as sex.” Therefore, “such a goal plainly runs counter to the express intent of the
historic [U.S.] Civil Rights Act and, concomitantly, the intent of Proposition 209.”

In addition to invalidating the San Jose program, Brown presented an enlightening analysis of the federal and
California judicial and statutory history of race-and-gender preferences. In particular, she focused on the 1964 U.S. Civil Rights Act, which forbids race-and-gender discrimination in employment, and the judicial case law that followed its enactment. This focus was necessary, she noted, because Prop. 209’s ballot arguments referred to the Civil Rights Act several times. In her analysis, she observed that Sen. Hubert Humphrey, one of the Act’s major supporters, said that the Act wouldn’t result in preferential treatment based on race. She also noted that the U.S. Supreme Court originally ruled that Congress passed the Act to “outlaw discriminatory preference for any group, minority or majority.” Only later did the Supreme Court re-interpret the Act to permit race-conscious
practices. Prop. 209, according to Brown, was intended to return anti-discrimination policy to the original
intent and interpretation of the Civil Rights Act where “preferences for any group constitute inherent
inequality” and are thus “an anathema to the very process of democracy.”

In a concurring opinion, Chief Justice Ron George, a white male, sniped at Brown’s opinion and defended the
good intentions of preference supporters. He claimed a difference between racial segregationists and
race-conscious affirmative-action advocates. Yet, as UC Regent Stephen Nakashima has eloquently stated,
“Discrimination in any form inflicts unjust injury on its victims; the injury is no less because the person
who, or the institution which, inflicts it purports to act with good intentions.”

Brown’s opinion tolls the death knell for California government programs based on race and gender
preferences. Her powerful analysis also shows why she should be considered for a position on the United
States Supreme Court.

- Lance T. Izumi