CFER sues Alameda County for its racial preferences in government contracting

SAN DIEGO, CA; July 25, 2022: Today, Californians for Equal Rights Foundation (CFER) and two individual co-plaintiffs, represented by Pacific Legal Foundation (PLF), filed a lawsuit challenging two Alameda County public contracting programs that impose race-based preferences for minority-owned enterprises.

“Racial quotas in public contracting, just as racial quotas elsewhere, are wrong and unconstitutional,” said PLF senior attorney Wen Fa. “The government should not be depriving opportunities for small businesses engaged in public contracting — and the Alameda County public contracting programs are particularly pernicious because they deprive opportunities based on race.”

Specifically, the Alameda County Public Works Agency has implemented the “Construction Compliance Program,” while the General Services Agency oversees the “Enhanced Construction Outreach Program.” Each program imposes a 15% “participation goal,” which operates essentially as set-asides, for companies certified as minority-owned businesses for county construction projects. The set-asides force general contractors to discriminate against subcontractors, and in many cases, they work to exclude subcontractors in certain fields from obtaining jobs just because they are not minority-owned.

Both programs, funded by local taxpayers, some of whom are supporters and volunteers for CFER, violate the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution and California’s constitutional ban on racial preferences (Article I, Section 31, codified through Proposition 209).

“California’s voters sent a strong message that they are serious about protecting the time-honored right of equality before the law, in 1996 when they approved Proposition 209, and again in 2020 when they defeated its repeal,” said Gail Heriot, CFER executive vice president. “Government favors on racial grounds have a pernicious past and do not belong in the 21st century.”

“The government should not be picking winners and losers on the basis of race or color,” commented Chunhua Liao, co-plaintiff in the lawsuit and an Alameda County taxpayer, “Furthermore, no public agency should expend taxpayers’ money to hand out race-preferential construction contracts. Alameda County is clearly violating the California Constitution and we will prevail in our legal challenge.”

CFER’s lawsuit is the first ever to defend California’s constitutional guarantee of equal treatment in the court of law since the resounding success of efforts to safeguard it on the 2020 state ballot.

The case is Californians for Equal Rights Foundation v. Alameda County, filed in the Superior Court of California in Alameda County.