WASHINGTON, D.C. and SACRAMENTO, CA -- Local government officials attempting to sabotage Proposition 209 with deceptive race-neutral language to disguise race and gender-based preference programs were just dealt a
devastating blow by the California Sixth District Court of Appeals. In a unanimous decision, the court struck
down a San Jose public contracting outreach program that used such semantic ruses.

Prop. 209 banned race and gender preferences in state employment, education, and contracting. After voters
overwhelmingly approved the measure, San Jose created the "Nondiscriminatory/Nonpreferential Treatment
Program," supposedly to end discrimination and preferences in the city’s subcontracting. The program,
however, simply masked old-style, and now illegal, requirements for race and gender preferences.

Specifically, contractors bidding on city projects had to create "outreach" programs in which bid notifications were sent only to minority and women subcontractors. Contractors had to negotiate with interested minority and women subcontractors and not "unjustifiably" reject any of their bids. Only if they had already subcontracted with a sufficient number of minority or women subcontractors would contractors be exempted from the outreach requirement.

High Voltage Wire Works, an electrical contractor, was the low bidder on an electrical project for a city water plant. However, because the company wanted to use its own work force and not subcontract out to anyone, San Jose rejected the company’s bid. A trial court said the preference program was unlawful under Prop. 209.

In its opinion upholding the trial court ruling, the appellate court observed that simply calling something
"outreach" doesn’t make it permissible under 209: "Preferential treatment of an individual in a targeted
category, however, is still preferential treatment regardless of the label used to describe it." Because
the San Jose program required contractors to notify and negotiate with only minority and women subcontractors,
the court ruled that these subcontractors received "an advantage over other businesses" that was prohibited
under 209.

The court also said that 209’s prohibition "is not limited to set-asides, quotas, and ‘plus factors,’ but extends to all preferences granted to the target groups," including race- and gender-based outreach, goals, and good-faith effort requirements. This is a key point because some lower courts have validated preference programs if they contained nebulous "goals" instead of quotas.

Further, the court explained the interplay between Prop. 209 and federal law. According to the court, since 209 prohibits all discriminatory treatment, it provides greater protection to individuals than is contained in federal law. The court also emphasized that the federal Civil Rights Act does not "impose a duty on public entities to implement remedial affirmative action programs that result in discrimination or preferential treatment."

Finally, because 209 offers more protection than even the 14th Amendment’s equal protection clause, the court
concluded that federal constitutional analysis is irrelevant. Indeed, said the court, even if such analysis did apply, preference programs like San Jose’s would likely be unconstitutional under the 14th Amendment.

Like latter-day George Wallaces, local governments in California have continued to give official sanction to
race and gender preferences. The courts are now saying, however, that these governments must obey the law.
Californians should demand that they do so.

-- Lance T. Izumi