Jerry Brown Calls Prop. 209 Unconstitutional

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.

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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.

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The case is Coral Construction vs. San Francisco, S152934.

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