Frederick Douglass, the American abolitionist and freedom fighter, fought tirelessly for equality under the law. In an 1857 speech condemning the Supreme Court’s thoroughly racist and ahistorical Dred Scott decision, he called for an America that keeps the promise stated expressly in the Declaration of Independence. “He used his platform “to support the most comprehensive plans for the freedom and elevation of all the people of this country, without regard to color, class, or clime.”
Sadly, more than a century and a half later, race has not been eradicated in our public institutions. For example, Alameda County — along with its General Services and Public Works Agencies — enforces two racially discriminatory programs in government contracting. Both the Construction Compliance Program and Enhanced Construction Outreach Program require prime contractors on certain government construction contracts to subcontract 15 percent of the subcontracting dollars to “minority-owned business,” a category determined by the race of the businesses’ owners.
These programs are plainly unconstitutional under both the federal and California Constitutions. The Fourteenth Amendment requires that the government shall not “deny to any person within its jurisdiction the equal protection of the laws,” and Article I, Section 31 of the California Constitution (better known as Proposition 209) provides that California and its cities and counties “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”
Alameda’s programs violate these constitutional protections by using race to determine winners and losers. That’s why a brave coalition of taxpayers in Alameda County are challenging the programs in court, seeking to keep their tax dollars from being spent on illegal discrimination.
What’s more, the County knows that its discriminatory programs are illegal. Over a decade ago, the County Counsel advised the County Board to discontinue the programs to comply with Proposition 209. The County refused. That’s probably why, instead of defending the programs on their merits, the County has argued that the taxpayers’ challenge is time-barred. In the mind of the County, it is immune from a challenge to its illegal discrimination purely because it started discriminating years ago, and no one stopped it then.
But this is not a one-time instance of discrimination that occurred many years ago — the County continues to enforce its discrimination to this day. California’s courts have long recognized that challenges to ongoing constitutional violations are not time-barred — otherwise, the government could get away with long-running illegal activity solely because it is long-running.
Now, represented by Pacific Legal Foundation, the taxpayers have taken their challenge to California’s First District Court of Appeal. They ask the court to vindicate essential principles of California civil rights law — that taxpayers may bring challenges to programs that violate the Fourteenth Amendment and Proposition 209, even years after enactment, and challenges to those programs are not time-barred where the violation is ongoing.
The central purpose of the Equal Protection Clause and Proposition 209 is to eliminate racial discrimination by state and local governments. The County cannot continue to discriminate simply because no one has stood up to it before today.
This op-ed was originally published at the California Gl0be on October 26, 2023.