California high speed rail collides with the Constitution

Will discriminatory contract requirements derail the California high speed rail?  In June, the California High Speed Rail Authority (CHSRA) is expected to award its first ever contract for the design and construction of a segment of California’s high speed rail line.  The contract will cover portions of Madera and Fresno counties.  Unfortunately, CHSRA requires the prime contractor who wins the contract, and its subcontractors, to discriminate on the basis of race and sex.

The general provisions of CHSRA’s design-build contract state that the contractor “shall” comply with CHSRA’s Small and Disadvantaged Business Enterprise Program.  That program imposes a 10 percent Disadvantaged Business Enterprise (DBE) goal, which means that 10 percent of the work must be allocated on the basis of race and sex.

The Supreme Court interprets the federal Constitution as allowing racial preferences in public contracting only if the use of such preferences is narrowly tailored to remedy extreme cases of identified discrimination—active and passive—that was perpetrated by the government authority awarding the contract.  In such cases the government is not entitled to deference.  It  must provide a strong basis in evidence showing that past discrimination occurred and that its effects are so entrenched that only the extreme measure of racial preferences can provide a remedy.

CHSRA has no evidence of discrimination.  How could it?  This is its first construction contract.  There is simply no past discrimination on California high speed rail construction projects, because there have never been any such projects before.  CHSRA’s race- and sex-based 10 percent goal is not derived from evidence of discrimination, it is pulled out of thin air as I discussed in one of my earlier posts on this subject.  PLF’s August 24, 2012 letter to the Federal Railroad Administration (FRA), on behalf of Ward Connerly and the American Civil Rights Foundation, contains an even more detailed explanation of these issues.

In addition to tunneling through the federal Constitution, the California High Speed Rail folks want to bore through the California Constitution.  Article I, section 31, of the California Constitution prohibits the state from granting preferential treatment to, or discriminating against, any group or individual on the basis of race, color, ethnicity, sex, or national origin in the operation of public contracting.  CHSRA cannot argue that a race-conscious program is necessary to maintain federal funding and is therefore permissible under the federal funding exception found in section 31, subdivision (e).  There is no federal authority mandating that CHSRA require its contractors to meet a 10 percent DBE goal.  The FRA’s own website clearly warns that the “FRA does not have the statutory authority to administer a DBE program.”

A “Community Benefits Agreement”—CHSRA’s project labor agreement—is attached in Addendum No. 8 to the contract documents.  Contracts between the California High Speed Rail Authority and contractors to construct any part of the California high speed rail “shall incorporate” the Community Benefits Agreement.  But one of the provisions of the agreement states that signatories “acknowledge” the 10 percent DBE goal and “shall exercise full support” of that policy.  All contractors “of whatever tier”—that means subcontractors too—“shall be required to accept and be bound to the terms and conditions of this Community Benefits Agreement.”

The stated purpose of CHSRA’s Community Benefits Agreement is to facilitate careers in the construction industry and to promote employment opportunities during the construction of the high speed rail system.  Unfortunately, CHSRA intends to divvy out those employment opportunities on the basis of race and sex.