Affirmative Action Ban Not Unconstitutional, California Supreme Court Rules

Maura Dolan, Los Angeles Times, August 3, 2010

The California Supreme Court ruled Monday that Proposition 209, the ballot measure that banned affirmative action by government, did not violate the federal Constitution.

In a 6-1 ruling, the majority rejected a defense argued by San Francisco after it was sued over a program that gave women and minorities an advantage in obtaining city contracts.

The court said the affirmative action program may continue only if the city shows it was narrowly tailored to address intentional discrimination by the city against businesses owned by women and minorities and that preferences were necessary to rectify the discrimination.

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San Francisco Deputy City Atty. Sherri Kaiser said the ruling was “the first time that any case has acknowledged that Proposition 209 is not a flat-out bar to affirmative action programs.”

Although disappointed that the court failed to declare the 1996 initiative unconstitutional, Kaiser said she believed the city would be able to justify its program.

The Pacific Legal Foundation, a conservative public interest law firm that sued San Francisco on behalf of two companies, disagreed, predicting that the contracting preferences were doomed.

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In a dissent, Justice Carlos R. Moreno contended that Proposition 209 was unconstitutional because it was explicitly race-conscious and established “a steep hurdle” for those seeking preferences for race and sex.

Proposition 209 cannot be modified without voter approval of a constitutional amendment, whereas other kinds of preferences can be approved by a mere vote of a city council or other governmental agency, he said.

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