Author: Joshua Thompson
After nearly three years, the California Supreme Court has set a date for oral argument in Coral Construction v. City and County of San Francisco. The argument will be held May 4, 2010, at 9 pm in San Francisco. PLF Principal Attorney Sharon Browne will be arguing the case for the petitioners.
This marks only the second time in the court's history that it has heard a challenge involving Proposition 209, California's landmark constitutional amendment prohibiting the government from discriminating against, or granting preference to, any person on the basis of race and sex. Here, the City and County of San Francisco automatically granted a 5%-10% discount on bids received by minority- and women-owned businesses for contracting projects. PLF argued that this contracting scheme discriminated against Coral Construction and Schram Construction under Proposition 209, because it granted preferences according to race and sex. PLF won this argument at the Court of Appeal.
San Francisco does not defend their program on the grounds that it is not discriminatory; instead, it argues that Proposition 209 is unconstitutional under the Equal Protection Clause. Thus, the California Supreme Court, for the second time, is set to rule on the very constitutionality of Proposition 209.
Fortunately, the overwhelming weight of authority supports Proposition 209's constitutionality. Every court that has heard the argument that San Francisco is making has rejected it. San Francisco argues that Proposition 209 violates equal protection, because it doesn't allow local governmental entities to treat races differently. In other words, San Francisco argues that the Equal Protection Clause, requires the government to treat races differently. I have blogged on the absurdity of this argument before.
In Coalition of Economic Equity v. Wilson, the Ninth Circuit Court of Appeals rejected this same argument against Proposition 209's constitutionality. In rejecting the argument, the court wrote, "The Fourteenth Amendment, lest we lose sight of the forest for the trees, does not require what it barely permits."
The Eastern District Court of Michigan recently wrote, "It is one thing to say that individuals have equal protection rights against political obstructions to equal treatment; it is quite another to say that individuals have equal protection rights against political obstructions to preferential treatment."
In Coalition to Defend Affirmative Action v. Granholm, the Sixth Circuit Court of Appeals heard a similar argument against Michigan's Proposal 2 (a sister initiative to Proposition 209). It wrote,"In the end, a law eliminating presumptively invalid racial classifications is not itself a presumptively invalid racial classification."
Pacific Legal Foundation has been at the forefront of Proposition 209 enforcement. It was lead counsel in cases that brought an end to discriminatory programs by the City of San Jose, the Sacramento Municipal Utility District, the Huntington Beach School District, the Department of Health and Human Services, the Department of General Services, the Port of Oakland — the list goes on. We are currently litigating cases against the Los Angeles Unified School District, Governor Schwarzenegger, and Attorney General Brown.
Proposition 209 provides equal opportunities. It has helped put an end to governmental discrimination in California. It has spawned sister initiatives in Michigan, Washington, and Nebraska. It is a step towards realizing the dream that people should be judged not on their skin color, but by the content of their character.
PLF will continue to fight for equality. Presently, the fight heads to the California Supreme Court.