A win for equality under the law


Author: Joshua Thompson

Three years after accepting review, the California Supreme Court, in a 6-1 decision, rejected the City and County of San Francisco's attempt to get Proposition 209 declared unconstitutional.  In Coral Construction v. City and County of San Francisco, PLF challenged a City and County of San Francisco contracting scheme that automatically granted a 5%-10% discount on bids received by minority- and women-owned businesses for contracting projects. PLF argued that this discriminated against Coral Construction and Schram Construction under Proposition 209, because it granted preferences according to race and sex.  PLF attorney, Sharon Browne, argued the case in front of the California Supreme Court.

The City did not defend their program on the grounds that it was not discriminatory; instead, the City, in the Supreme Court's words, "invoke[d] the rarely used political structure doctrine" to argue that Proposition 209 is unconstitutional under the Equal Protection Clause.  Today, the California Supreme Court rejected that argument outright.  It said:

Accordingly, even in the rare case in which racial preferences are required by equal protection as a remedy for discrimination, the governmental body adopting such remedies must undertake an extraordinary burden of justification "to assure all citizens that the deviation from the norm of equal treatment of all racial and ethnic groups is a temporary matter, a measure taken in the service of the goal of equality itself." In contrast, a generally applicable rule forbidding preferences and discrimination not required by equal protection, such as section 31, does not logically require the same justification.

While the Court's positive ruling on the issue of Proposition 209's constitutionality is undoubtedly the most important victory to come from the case, it is not the only one.  The City had also argued that they were required to maintain a race-conscious preference program in order to maintain eligibility for federal funding. In other words, the City tried to invoke Proposition 209's limited exception in order to continue their discriminatory program.  The Court rejected that argument as well:

The unmistakable import of this language is not that race-based remedies are required, but simply that they are permitted, so far as the Secretary is concerned, if no other law precludes them. That the Secretary has no objection to race-based remedies does not establish the federal compulsion required to exempt the City's 2003 ordinance from section 31.

Lastly, the City argued that it had to maintain its race-conscious program because it was actively engaging in explicit instances of intentional racial discrimination.  On this point, the Court recognized that, if true, the City may be required to enact a preference program to combat specific instances of racial discrimination, but the Court was skeptical.  The Court remanded the case back to the trial court in order for that court to gather evidence on the issue of specific evidence of intentional discrimination.  The Court made clear the very high burden that the City will have to establish in order to prevail below:

Accordingly, to defeat plaintiffs' motion for summary judgment, the City must show that triable issues of fact exist on each of the factual predicates for its federal compulsion claim, namely: (1) that the City has purposefully or intentionally discriminated against MBE's and WBE's; (2) that the purpose of the City's 2003 ordinance is to provide a remedy for such discrimination; (3) that the ordinance is narrowly tailored to achieve that purpose; and (4) that a race- and gender-conscious remedy is necessary as the only, or at least the most likely, means of rectifying the resulting injury. If any of these points can be resolved as a matter of law in plaintiffs' favor, it follows that the City cannot establish federal compulsion and that plaintiffs are entitled to summary judgment.

All in all a resounding victory for equality under the law.  Expect a number of additional posts as I digest the entirety of the Court's opinion, but I wanted to let you all know the results of this extremely important case.