Bob Egelko, San Francisco Chronicle, April 19, 2007
A state appeals court has given San Francisco a chance to reinstate an affirmative action program for minority and female contractors, saying a history of discrimination may justify preferential treatment despite California’s Proposition 209.
A judge who struck down the 20-year-old program in 2004 failed to review San Francisco’s claims that long-standing and pervasive discrimination by both city employees and contractors resulted in firms owned by minorities and women being illegally excluded from winning city business, the First District Court of Appeal ruled Wednesday.
If San Francisco can prove those claims, it may be able to show that the U.S. Constitution’s guarantee of equal protection requires the city to grant preferences to minority and female contractors to eliminate the effects of discrimination. That would override Prop. 209, a 1996 initiative that banned race and sex preferences in public contracting, employment and education, the court said.
San Francisco has had programs to increase minorities’ and women’s share of city contracts since 1984, and has faced continual legal challenges from white contractors. The current ordinance, passed in 2003, gives minority- and female-owned firms a 10 percent advantage in competitive bids. It also requires contractors to hire a certain percentage of subcontractors that are not owned by white men or to show that they have made good-faith efforts to meet those goals.
Superior Court Judge James Warren overturned the ordinance in July 2004, citing a state Supreme Court ruling that struck down a similar program in San Jose in 2000 on the grounds that it violated Prop. 209. The San Francisco suits were filed by Coral Construction, an Oregon firm that bid unsuccessfully for an airport contract, and Schram Construction, a Santa Rosa company that has won several city contracts.
The ordinance, which has not been enforced since Warren’s ruling, may be the only one of its kind still on the books in California. Warren has since retired, so another San Francisco judge will probably be assigned to hear the issue framed by Wednesday’s decision.
After hearings that led to passage of the 2003 ordinance, the city Human Rights Commission reported that companies owned by minorities and women were substantially under-represented in city contracts, despite many years of preferential programs.
In Wednesday’s ruling, the court noted that a similar 1989 San Francisco ordinance had survived a federal court challenge that raised the same issues. Even the U.S. Supreme Court, which has struck down other cities’ minority-preference programs, has acknowledged that a racially conscious program might be necessary to “break down patterns of deliberate exclusion,” the three-judge appellate panel said.
In another part of the ruling, the court rejected the city’s constitutional challenge to Prop. 209 on a 2-1 vote.
The majority, led by Justice Timothy Reardon, agreed with a 1997 federal appeals court decisiona ruling that was not binding on state courtsthat Prop. 209 treated all racial and sexual classifications equally and did not exclude minorities or women from the political process. Justice Maria Rivera dissented, saying Prop. 209 amended the state Constitution to eliminate affirmative action programs based on race or sex while allowing other types of preferences to continue.