Caltrans’ Misguided U-Turn on Contracts

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Whether through misunderstanding, inertia or ideologically-based defiance, many government agencies continue to treat people differently based on skin color or gender, despite the law’s clear prohibition.

Inevitably, appellate courts have recognized these policies as illegal. The state government, local officials in San Jose and Sacramento and school districts in Huntington Beach and San Juan Capistrano have all been on the losing end of Proposition 209 litigation.

Now, the spotlight turns to the California Department of Transportation.

With the apparent approval of Gov. Arnold Schwarzenegger, Caltrans has announced that in 2008 it will use race, ethnicity and gender when awarding contracts under the federal highway program. What are the agency and the governor up to?

Caltrans claims that it must employ such favoritism to make up for past discrimination by the agency or it will lose federal highway funds. In reality, it can’t support its findings that such discrimination occurred, and even it if could, it admits that it hasn’t exhausted nondiscriminatory remedies, as the law requires it to do.

Caltrans justifies flouting Proposition 209 by pointing to a loophole in the law that allows preferences to be used if federal funding would be at risk. Yet there is no real evidence that federal funding is at risk.

Consider this: In May 2006, Caltrans abandoned its policy of favoritism for minority- and female-owned business enterprises. California has since lost no federal highway funds because it went race-neutral, and the federal government hasn’t requested Caltrans to remedy discrimination problems.

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More likely, the attempt to reintroduce racial preferences is a misguided effort by Caltrans and the Schwarzenegger administration to appease the politically correct crowd that never wanted to follow Proposition 209 in the first place. Back in May 2006, the agency made its position clear when it announced “with regret” that it would be going race-neutral and that this setback was only for an “interim period.”

Yet if garnering minority political support is the goal, the program is ill-conceived. It discriminates against Latinos while carving out special preferences for African Americans, Asian Pacific Americans, white women and Native Americans.

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