SACRAMENTO, CA - At a recent hearing before the California Supreme Court, the defenders of race and gender preferences looked like Custer at Little Big Horn. Surrounded by hostile justices firing legal and analytical arrows,
the preference die-hards could only answer back with pop-gun claims and rhetoric. The consensus among
observers: it was a massacre.

The case in question involves the city of San Jose’s requirement that contractors performing work for the
city negotiate with minority subcontractors and accept their bids or give good reason why the bids were
rejected. Such regulations, popularly called “targeted outreach,” can have profoundly unfair effects. The
plaintiff company in the case, High Voltage Works, submitted the low bid for electrical work on a San Jose
sewage treatment plant. Because the company did all its work in-house, it didn’t ask for bids from
subcontractors. Which, of course, meant that no women or minority subcontractors were contacted. San Jose,
therefore, denied High Voltage the contract because it did not give women and minority subcontractors
preference over its own workers.

The San Jose regulation clearly seems to run afoul of Proposition 209’s provision, now Article I, Section 31
of the state constitution, that 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.” A no-brainer, right? Not according
to state Attorney General Bill Lockyer and San Jose city officials.

Lockyer, bizarrely, argued to the justices that since the intent of voters in approving Prop. 209 was not to
eliminate “equal opportunity for all,” San Jose’s preference program for a few should stand. Worse, the
state’s top lawyer likened the San Jose program to an instructor speaking louder in a lecture hall so those
in the back could hear. Yes, he actually said that.

Not to be outdone, San Jose’s lawyers claimed that a city-sponsored 1990 study showed that the city had
discriminated against women and minority subcontractors since they were underrepresented in city contracts and
that the preference program made up for this past discrimination. However, Harold Johnson, attorney for
the Pacific Legal Foundation that represents High Voltage Works, accurately noted that if San Jose
actually did practice discrimination, why weren’t any offending bureaucrats fired? As for the state Supreme
Court justices, they weren’t buying the fork-tongued arguments of Lockyer, et. al.

“In plain language, [Prop. 209] prohibits any preference,” said Justice Joyce Kennard. Chief Justice
Ron George said that government outreach programs were allowable as long as they weren’t based on race or
gender. Justice Kathryn Werdeger said that the voter ballot guide made it clear that preference programs
would be eliminated. The justices’ sharp comments indicate that they intend to uphold the full letter and
spirit of Prop. 209.

A strong opinion from the state’s highest court will sober up San Francisco, which openly defies Prop. 209,
and the University of California Board of Regents, which is considering rescinding its own ban on
preferences, and any others who seek to resurrect the ancien regime of race-and-gender favoritism. George
Wallace eventually got the message. It’s time that Bill Lockyer, Willie Brown, and their think-alikes got it
too.

- Lance T. Izumi