State Justices Deal a New Setback to Affirmative Action

By MAURA DOLAN and DANIEL YI

Dec. 1, 2000 12 AM PT

TIMES STAFF WRITERS

SAN FRANCISCO — In a decision that threatens hundreds of affirmative action programs statewide, the California Supreme Court ruled Thursday that government agencies can no longer limit recruitment efforts to women and minorities.

The ruling was the court’s first on the scope of Proposition 209, the 1996 initiative that banned racial and gender preferences by government agencies. The justices struck down a San Jose program that required contractors to show that they tried to recruit female- and minority-owned subcontracting firms.

Although all seven justices said the San Jose contracting program violated Proposition 209, the court issued four separate opinions, which included some unusually sharp criticism by Chief Justice Ronald M. George of the main opinion, written by Justice Janice Rogers Brown.

The sweeping decision may affect a wide range of government programs, from contracting to student transfer policies in school districts. Lawyers for the University of California were studying the ruling Thursday and were not immediately sure whether it would affect UC’s outreach efforts.

Some recruitment programs, however, are likely to survive because they are not limited to minorities and women, legal analysts said.

In Orange County, for example, public agencies had shunned outreach programs specifically targeting minorities and women even before the passage of Proposition 209, officials said Thursday.

“We have no existing programs of that kind, so there will be no effect,” said Diane Thomas, a spokeswoman for the county executive office. “We have no formal minority outreach programs. Everyone, from employment to contracts, is encouraged to apply.”

In the Santa Ana Unified School District, where a recent board decision to diversify its pool of contractors has led to charges that it delayed projects, board member Nativo Lopez vowed to continue to reach out to minority- and female-owned businesses.

“Outreach needs to be broader,” Lopez said. “When we talk to some of these firms, a lot of them are not predisposed to bid for projects, because they feel they would not even be considered.”

Unlike the San Jose case, Santa Ana Unified officials did not require contractors to reach out to minorities and women. Instead, they canvassed city businesses themselves in a bid to reach more disadvantaged firms, Lopez said. Because outreach or minority status was not mandatory to qualify for contracts, Lopez said he expected the practice would not violate Thursday’s ruling.

The high court’s decision, however, may have an impact on a pending lawsuit brought against Huntington Beach Union High School District over its student transfer policy, said Sharon Browne, an attorney with the Pacific Legal Foundation, a conservative group that brought the court case.

The district was sued last year for barring white students from transferring out of its Westminster High School. The district argued that the measure was needed to maintain ethnic balance in its schools.

Browne, who is also representing the plaintiffs in that case, said the practice violates Proposition 209 and that Thursday’s ruling reinforces their case.

“The court said Prop. 209 means what it says,” Browne said. “Any government program that uses race or sex as a basis for preference violates the California Constitution.”

District officials were not available for comment Thursday, but their lawyer disputed that the ruling would have bearing on the case.

“Our issues are very different,” attorney David Larsen said. “It is not about granting any type of preference but ensuring that we maintain integrated schools.”

Among survivors of the ruling could be a contracting effort by the city of Los Angeles, several legal experts said.

“It is a very, very broad ruling,” said Browne, the Pacific Legal Foundation attorney. “It is going to impact every program in state government that employs race or sex.”

Civil rights lawyers predicted that cities and counties will now shy away from all affirmative action programs.

“Local governments that want to do the right thing are going to be scared by this decision,” said Daniel Tokaji, staff attorney for the American Civil Liberties Union of Southern California.

Other civil rights advocates expressed fear that the decision will encourage efforts in other states to abolish affirmative action programs.

“A lot of what happens here ripples through the country,” said Ginger Conrad, publisher of Torrance-based Minority Business Entrepreneur magazine. “Every time we have a court ruling that supports the overturn of any modicum of effort for equality on behalf of minorities and women, then it strengthens the assault.”

In her opinion for the court, Justice Brown, joined by three other justices, attacked the entire history of affirmative action. Courts over the years had moved from protecting individuals against racial discrimination to entitlement programs for certain groups, she wrote.

“With the approval of Proposition 209,” Brown wrote, “the electorate chose to reassert the principle of equality of individual opportunity as a constitutional imperative.”

But George, in a separate opinion joined by Justice Kathryn Mickle Werdegar, strongly objected that Brown’s opinion was overly broad and “less than evenhanded” and would undermine confidence in the court.

Brown’s opinion ignored the circumstances in which affirmative action has been used to benefit society as a whole, George wrote.

Her dismissal of all affirmative action programs as “proportional group representation,” he added, is “a serious distortion of history and does a grave disservice to the sincerely held views of a significant segment of our populace.”

At issue in the case was a San Jose program adopted after the passage of Proposition 209. The program required contractors to recruit a certain number of businesses owned by women and minorities. Contractors did not necessarily have to hire one of the minority- or female-owned businesses, but if they failed to hire any, they were required to explain why.

In 1997, the city solicited bids on a sewer project. A firm called Hi-Voltage Wire Works submitted the lowest bid but was denied the contract because it did not fulfill the recruitment requirements. The firm had planned to use its own work force without subcontracting.

Upholding a decision by a court of appeal, Brown said the San Jose program was unconstitutional because it provided preferential treatment to firms owned by women and minorities and discriminated against those owned by white men.

“A participation goal differs from a quota or set-aside only in degree,” Brown wrote. “By whatever label, it remains ‘a line drawn on the basis of race and ethnic status’ as well as sex.”

The opinion by Brown was the first indication of her sentiment about affirmative action. Although she was appointed by Gov. Pete Wilson, a sponsor of Proposition 209, some black lawyers associations had expected that as the first African American woman on the court, she would defend affirmative action.

Instead, in rejecting the San Jose program, Brown said the city’s program amounted to “discriminating or granting preferences” in favor of minorities. The program, she said, penalized firms without evidence that they had ever discriminated against women and minorities.

Outreach to disseminate information about public employment, education and contracting is still permissible, she said. But she declined to describe any programs that would comply with Proposition 209 and said the court expressed “no opinion” about the legality of Los Angeles’ city contracting program.

But George cited the Los Angeles effort as permissible and listed a variety of efforts he said would not run afoul of the law, including expanded advertising and public contract hotlines. The court’s ruling, he wrote, “does not prohibit all affirmative action programs or preclude governmental entities in this state from initiating proactive steps . . . to address the continuing effects of past discrimination or exclusion.”

San Jose City Atty. Richard Doyle said his city created its outreach program to comply with Proposition 209 and will now have to come up with a new effort.

“The court is essentially saying that any race-based programs are problematic,” Doyle said. “While you can have generic outreach programs and try to widen your reach as much as possible, you can’t focus on race.”

The sweep of the decision could affect a wide variety of programs.

The state’s community colleges have continued to use “hiring goals” to guide their attempts to diversify their staffs. College leaders say the practice is important given the increasing ethnic diversity of California college students. For example, the Los Angeles Community College District serves a student body that is about 80% minority, while the faculty is nearly 70% white.

After the court’s decision, “hiring goals are at the very least problematic,” said Harold Johnson, an attorney for the Pacific Legal Foundation. “Goals can essentially mean quotas,” he said.

Ralph Black, general counsel for the state community colleges, said he was studying the decision to assess its impact on college policies.

Times staff writer Jill Leovy contributed to this story.