Bob Egelko, San Francisco Chronicle, April 23, 2009
The 1996 ballot measure that outlawed preferential treatment for women and minorities in government programs is unconstitutional because it prohibits all affirmative action and fosters the discrimination it was supposed to eliminate, Attorney General Jerry Brown told the state Supreme Court on Wednesday.
Brown’s opinion, which the court requested in considering a lawsuit that two white-owned contractors brought against San Francisco, could reopen the legal debate on Proposition 209. A federal appeals court upheld the measure in 1997, but the state’s high court has never ruled on its validity.
It could also become an issue in Brown’s expected campaign next year for the Democratic nomination for governor. Although Prop. 209 was approved by 54 percent of the voters, Brown’s position might help him in his party’s primary.
The initiative banned race and sex preferences in state and local government contracting, employment and education programs. The San Francisco case involves a 2003 ordinance—now suspended by court order—that gave firms owned by minorities and women a 10 percent advantage in competitive bids.
Another case that could soon reach the court is a challenge by Prop. 209 supporters to Berkeley’s school integration program, which allows elementary school officials to seek student-body diversity by considering the racial and economic composition of a child’s neighborhood. A state appeals court upheld the program last month, saying Berkeley was not basing enrollment decisions on the race of any individual student.
Brown’s brief, written by Solicitor General Manuel Medeiros, noted that the U.S. Supreme Court has set strict constitutional standards for judging race-conscious programs: They must be based on a history of discrimination against a group and must be designed to promote a legitimate goal, such as diversity in school enrollment, that cannot be met in other ways.
Measure ‘closes a door’
But Prop. 209 goes further and prohibits programs that the U.S. Constitution allows, without justification, Medeiros said.
{snip}
Brown’s office did not expressly ask the court to overturn Prop. 209. But if the justices followed the attorney general’s opinion, they would strike the measure down or narrow it to reflect federal standards, which would eliminate its independent effect.
First case in 9 years
The San Francisco case is the first Prop. 209 dispute to reach the California Supreme Court since 2000, when the court overturned a San Jose ordinance requiring city contractors to conduct outreach to companies owned by minorities or women—notifying them of subcontracting opportunities—without giving them any bidding advantage.
The ruling said the program contained race and sex preferences that violated Prop. 209, but did not consider the constitutionality of the measure. The Pacific Legal Foundation, a property-rights organization that opposed the San Jose ordinance, also represents the white-owned contractors suing San Francisco.
“Prop. 209 has been upheld and applied by courts for more than a decade, to strike down discriminatory policies at all levels of government,” said Sharon Browne, a lawyer with the foundation [the Pacific Legal Foundation, a property-rights organization]. “It is outrageous that Mr. Brown is now asking that it be ripped out of the state Constitution.”
Unusual request
Browne acknowledged the court’s request for the attorney general’s opinion in a pending case was unusual, but said she doesn’t know how much weight it will carry. Civil rights attorney Eva Paterson, president of the Equal Justice Society, said she is optimistic that the justices will take the opinion seriously.
{snip}
The case is Coral Construction vs. San Francisco, S152934.
Original article
Email
Bob Egelko
at begelko@sfchronicle.com .
(Posted on April 23, 2009)
Comments
“The 1996 ballot measure that outlawed preferential treatment for women and minorities in government programs is unconstitutional because it prohibits all affirmative action and fosters the discrimination it was supposed to eliminate, Attorney General Jerry Brown told the state Supreme Court on Wednesday.”
Well, I will admit that if the minorities don’t get preferences, they won’t get certain jobs. This is about as discrinatory as when i got a lousy grade in school because I didn’t study. As far as women bering discriminated against, that’s just malarkey. Women aren’t discriminated against. Men always do the best they can for women. Any man who doesn’t isn’t a man in my book.
Tom Iron…
lets all start asking for a t.v. show that shows the hypocrisy of all of these liberals, that have ruined our country..i think it would not only be interesting, but a terrific hit show..call it “lets follow them home”. we show how all of these big rich liberals shelter themselves from the minorities they act like they embrace. like polosi, kennedy,jerry brown, feinstein, reid, durbin, schumer, clinton etc; show where the live,(kennedy on cape cod) show what they drive, show what clubs they belong to, show where there kids go to school, expose the convenences of their neighborhoods, expose their tax shelters, show what social groups they hang around in, etc.. when you do that, they will run for cover, and we will never hear from them again. follow them home to their all-white gated communities, then and only then will they stop ruining america.
Is Prop 209 a state constitutional amendment? How can a constitutional amendment be unconstitutional according to the state constitution? Unless he means that it’s Federally unconstitutional.
The background to all discussions of affirmative is post-1965 immigration policy which is radically and rapidly changing the racial composition of America.
It is hard to find words to describe the insanity of what is going on in 21 first century America. I will give it a try.
The interaction of post-1965 immigration policy and affirmative action is a lethal mix. For those Native Born White Americans who think minority status means the end of affirmative action I have this to say:it is only the beginning of decades and decades of vicious discrimination against an ever dwindling Native Born White America population.
The proper response is to expose publicly the core bold face lies about post-1965 immigration. The biggest lie of them all is this:Native Born White Americans would be worse off if the 1965 Immigration Refrom Act had not been passed.
The immigration enthusiasts, since the Supreme Court decision concerning the University of Michigan’s affirmative action program, have stated publicly that the racial transformation of America via pos-1965 immgration policy requires an even greater scale of affirmaqtive action for-post-1965 non-whitres. In other words, the immigration enthusiasts are publicly admitting that the racial transformation of America via post-1965 immigration policy- a policy that will reduce Native Born White Ameicans to an ever dwindling racial minority within the borders of America-requires massive discrimination against Native Born White Americans. This bold admission is than followed up with th bold faced lie that if Native Born White Americans are not reduced to a racial minority as quick as possible, the economy will not be robust and healthy. This, Ladies and Gentleman, are the core lies that must be exposed and rejected. Enough with the sarcastic comments that are often posted on American Renassaince. Sarcasm is for folks who don’t like a good fight. Attack the playboy Bachelor millionaire Brown on the core lies that he and his race-replacement enthusiasts expect US to accept.
Simply state that affirmative action can not be disentangled from the passage of the immigration refrom act of 1965 and that the 1965 immigration refrom act has been a complete disaster for the majority Native Born White American population. More latter…
“Banning preferences for women and non-whites discriminates against them.”
What? Did I read that right? I must need new glasses. Banning preferences is discrimination? In other words, forbidding discrimination constitutes discrimination!!!
Have all the governments in the Western world gone crazy? This is like telling us that 2 + 2 = 9. Even Orwell would have been speechless.
Disappointing. I actually like Jerry Brown for a whole bunch of reasons not related to race. And he seems like a down to earth guy, somewhat atypical for a career politician. Charley Reese, btw, was another tradition-minded thinker who had good things to say about Brown.
But how in the name of God could someone deal with municipal employees in Oakland for a decade or so (when he was Mayor) and come to the conclusions that he puts forward here as AG?
Maybe this is just what he has to do to run for Governor as a Dem.
“Civil rights attorney Eva Paterson, president of the Equal Justice Society, said she is optimistic that the justices will take the opinion seriously.”
Got that? A woman who favors racial discrimination against whitey is called a “civil rights attorney” for the “Equal Justice Society.”
I wish the white contractors well but California is now majority non-white and soon it will be majority Hispanic. Time to play by their rules. Needless to say, equal opportunity is not a Hispanic value.
The Ca. Brown family of liberal leftists have zero creditability concerning both constitutional laws and equality for all under those laws; they are shameless commies.
I’m for equal opportunity, not forcing equal outcome.
“…I wish the white contractors well but California is now majority non-white and soon it will be majority Hispanic. Time to play by their rules. (Emphasis added.) Needless to say, equal opportunity is not a Hispanic value.
Posted by Bernie at 8:50 PM on April 23”
Nope…time to leave. Close down your businesses, pack up and get out while you still can. Make Atlas shrug by refusing to participate.
So not discriminating against whites now violates the Constitution. The California government is insane.
Let’s expose their tax shelters, show what social groups they hang around in, etc.. when you do that, they will run for cover, and we will never hear from them again.
I love how the term “unconstitutional” is bandied about by corrupt politicians to promote their agendas. While I’m far from a constitutional scholar, let me go out on a limb and state that James Madison probably was not an ardent supporter of race-based quotas.
Is Prop 209 a state constitutional amendment? How can a constitutional amendment be unconstitutional according to the state constitution? Unless he means that it’s Federally unconstitutional.
No, it was already determined to be valid in federal court. Yes, he is saying that an amendment to the state constitution is against the state constitution. He’s made the same argument with regard to Amendment 2, the amendment passed by voters last year that outlawed (for the second time) gay marriage.
This is the man who is running for governor of California next year. In all likelihood he will win. The voters will elect a governor (have already elected an attorney general) who thinks that the voice of the voters is one that can be ignored on a whim.
And people wonder why things are so bad…
The thing that scares me the most in reading this article is Jerry Brown running for governor again. We’ve had more than enough of Jerry Brown calling the shots for California. When Brown was governor he went way out of his way to stack the courts with liberal judges. He made Rose Bird the Chief Justice on the State Supreme Court. She was so outrageous that even the liberal citizens of California voted to recall her and two other extremely liberal justices. Brown is right back in that mode as AG of the state. Despite the fact that citizens of California voted against gay marriage in Prop. 8, Brown’s office argued argued the prop.instead of supporting the will of the people. Brown also stopped all freeway construction as governor causing a nightmare in the state for years. This self-righteous and sanctimonious charlatan is NOT the answer to a California’s mega problems and no one would be upset if he went back to Oakland.,
To White Cornerback:
Like yourself, I always admired Jerry Brown because he always seemed to have more integrity and decency than most slick politicians.
Unfortunately it might not be possible to be elected to statewide office as a Democrat without shameless pandering.
We see this now in New York w/the case of Kirsten Gillebrand, an anti-Amnesty pro-2nd Amendment congresswoman who was just appointed to Hillary Clinton’s Senate seat.
In the space of a month she’s embraced open-borders, gun control and is now absurdly demanding that the next Supreme Court Justice be a hispanic woman.
“They must be based on a history of discrimination against a group and must be designed to promote a legitimate goal, such as diversity in school enrollment, that cannot be met in other ways.”
wow, sounds like white guys in California should be receiving affirmative action protection. But some things will never be achieved, such as diversity in school enrollment. In some of these school systems there are hardly any whites left at all.
“Banning preferences for women and non-whites discriminates against them.”
This is nothing new. In fact the more they discriminate against white males - the more the noisy public face of affirmative action must say it is whites who are discriminating, and it’s very evil. Only one side of the debate is every truly represented. Occasionally a conservative figure will be brought out saying ‘maybe we have too much affirmative action’ and they’ll be used as a punching bag by the media and those who administer affirmative action. We never hear from the ‘Nazis’ except to read about their arrest reports, etc.
I’ve been saying this for ages now, it will only be when white men are denied, ‘affirmative action’, too, that the hate whitey train will seriously slow down in earnest. To speed up that day, white men should ask for it.
“I’m for equal opportunity, not forcing equal outcome.”
Posted by Alexandra at 9:44 PM on April 23
The problem is that forcing an “equal outcome” is impossible, and moreover, not desireable. We don’t want a bunch of drones doing an “accceptable” job, but exceptional people making things work the best they can with progress being made through innovation. That requires that our best and brightest be given the best jobs.
When it comes to it, providing equal opportunity is impossible. In order to hire for a position, someone has to discriminate between applicants using some sort of criteria. What has been done through political preferrences has hurt everyone. Why else could we now have someone so unsuited for her positon such as Napolitano as head of Homeland Security?
I think that it should be prohibited to list race or ethnicity on any application and that ought to be culled by solid evidences of qualifications, such as education, experience, referrences, etc. Then interviews could be made. But creating artificial preferrences through “protected groups” laws has led to the kind of function of government and even private sector that been the undercurrent of all that has gone wrong in the past 20 years at least. That is because attitude tickles up. The causual attitude of street Blacks has made it into the Oval Office so we see our President and first lady doing things like hugging the Queen of England and bowing to a Saudi prince, a first lady posing on the cover of Vogue and the Commander and Chief featured shirtless on a magazine cover.
And if you look at the CEOs who got the biggest bonuses, only one - Murdoc is actually a blue eyed White man. The rest of either Indian, Middle Eastern or some sort of swarthy Southern European (Latin) extraction. One is actually Black. The only one who has seemed to have a conscienous in our entire economic mess is the blue-eyed White man director of Fanny Mae who committed suicide earlier this week.
I don’t know why he bothers. Prop 209 is as much dead letter law. It has never been enforced. It never will be enforced.
Then Prop 209 will be enforced, but only after the white civil rights attorneys file and win lawsuits alleging discrimination between the numerous non white immigrant groups.
He was Mayor of Oakland for a while and actually lived in downtown Oakland. He knows all about the disfunctional black government workers of Oakland and Alameda County.
Some great crusading liberal he is. His wife is a garment industry executive aka sweatshop owner.
Perhaps Brown does not know it, but the AG is supposed to defend the law, not oppose it. He should resign.
Jerry Brown is a bigot. Everyone who supports discrimination is a bigot. Brown supports discrimination so Brown is a bigot. “Affirmative Action” is discrimination against whites and double discrimination against white males. If 80% of Americans support “Affirmative Action” then 80% of Americans are bigots. Start calling these people bigots, and repeat it, over and over. Refer to actions and opinions such as Brown’s as bigotry at every opportunity, because that’s what is is.
