San Francisco, CA—As natives can attest, in this city the normal rules do not apply, including the rule of law. Witness the most recent public contracting preferences spectacle, where millions of the city’s dollars are operating in violation of equal protection laws, and city officials are bending over backwards to support the violations.

Mayor Willie Brown, a longtime defender of preference programs based on race and sex, has made his latest pet San Francisco’s Minority/Women/Local Business Utilization Ordinance, a program of sheltered bids and bid “bonuses” for select groups. This race-and-gender spoils system continues to operate in violation of two U.S. Supreme Court decisions and the voter-approved California Civil Rights Initiative, which became law last year. But the Mayor believes preference programs “work” and says he has no intention of changing them.

The city’s ordinance gives eligible San Francisco companies “extra credit” in competitive bidding and requires the largest contractors to share a percentage of the work with minority- and female-owned businesses. The ordinance was set to expire last summer but the city’s Board of Supervisors kept it alive through temporary extensions, backed by active encouragement from the Mayor’s office despite current law. A 1989 ruling by the U.S. Supreme Court in City of Richmond v. Croson allows preference programs only in cases of identified, systemic racial discrimination. One might have thought the success of California’s Proposition 209, which prohibits race and gender preferences, signaled the final death of the wounded program. But one would be underestimating the will of preference defenders.

To protect their programs, the city’s Human Rights Commission contracted with Mason Tillman Associates (a minority, woman-owned business) to perform a disparity study on the city’s public contracting practices. If Mason Tillman could prove systemic discrimination, King Willie would have a powerful shield to ward off the Prop. 209 enforcers. But that’s not what happened.

As the San Francisco Examiner reported, the disparity study found no statistical evidence of discrimination against African Americans and only inconclusive evidence of discrimination against women and other minority-owned businesses. The evidence is inconclusive simply by virtue of the study’s nature.

Disparity studies are designed to infer discrimination from any difference between representation in a pool of candidates and their representation among the chosen group. For example, if the Mason Tillman study found a difference between the number of contracts earned by female-owned construction firms and their representation among certified firms, readers are supposed to explain that difference with discrimination.

What makes statistics so tempting is the very thing that undermines their credibility-they are simply too malleable to the whims of those holding the calculator. The Mason Tillman study makes scant mention of blind contract bidding and its race-neutral mechanics. Instead, discrimination is both the question and answer, exactly what the inquirer wanted to find in the first place.

The disappointment at finding such positive results must have been palpable, but the failure to prove discrimination had no effect on Willie and his troops. To keep San Francisco in the business of discrimination, the Mayor and his supporters are willing to flout the state’s Constitution, the edicts of the U.S. Supreme Court and the will of a majority of Californians. Once again, it’s Willie against the world, and the world better watch out.

—Katherine Post, Director of the Center for Enterprise and Opportunity