April 30, 2010

Mark your calendars–May 4: Cal. Supreme Court argument on S.F. flouting Prop. 209

By Mark your calendars–May 4: Cal. Supreme Court argument on S.F. flouting Prop. 209

WHAT:  On May 4, 2010, oral argument will be held at the California Supreme Court, in Coral Construction v. San Francisco.  Pacific Legal Foundation attorneys represent contractors who are challenging San Francisco's 2003 public contracting ordinance, as a violation of Proposition 209 (Article I, Section 31, of the California Constitution) because it provides for race- and sex-based quotas in awarding public-works contracts.

WHO: SHARON L. BROWNE, a Principal Attorney with Pacific Legal Foundation, will present oral argument for the contractors challenging San Francisco’s race- and sex-based quotas in public works contracting, as a violation of Proposition 209. 

WHERE: California Supreme Court, Earl Warren Building, 350 McAllister Street, Fourth Floor, San Francisco, California, 94102.

WHEN: Tuesday, May 4, 2010, 9:00 a.m. (PDT).

FACTS: Adopted by voters in 1996, Proposition 209 (Article I, Section 31, of the California Constitution) bans race- and sex-based preferences and discrimination in government contracting, employment and education.

Despite this prohibition, San Francisco adopted an ordinance that provides for race- and sex-based quotas in contracting. Bids submitted by minority- and women- owned business enterprises are calculated as being 10% lower than what they actually are. The ordinance is now under suspension by court order.

• Trying to rationalize its quotas, San Francisco contends that it had a history of racial discrimination in contracting, so preferences are now justified as a remedial measure. PLF attorneys counter that 1) Prop. 209 does not permit new discrimination – i.e., race- and sex-based preferences – as a "remedy" for past discrimination; and 2) in any case, San Francisco’s disparity study providing "evidence" of past discrimination offers no genuine evidence and is not credible.

• Attorney General Jerry Brown has weighed in on San Francisco’s side, arguing that Prop. 209 is unconstitutional to the extent it prohibits quotas to any greater degree than decisions of the U.S. Supreme Court under the federal Equal Protection Clause.  PLF Principal Attorney Sharon Browne has responded: "The whole point of Proposition 209 was to provide more protection against race- and sex-based preferences and discrimination, and this fact has been explicitly recognized by both the California Supreme Court and the Ninth Circuit Court of Appeals."

• PLF attorneys represent Coral Construction, Inc., and Schram Construction, Inc., both of which have been discriminated against in San Francisco’s public contracting process, because of the city’s quota program.

About the May 4 oral argument, Sharon Browne had this statement: "Government discrimination based on race and sex is wrong. In California, it also happens to be unconstitutional, thanks to Proposition 209. Proposition 209 leaves no room for government programs that mandate race-conscious actions. Yet that is what San Francisco wants to do. San Francisco wants to be allowed to discriminate. That’s why we’re at the California Supreme Court – to ask that San Francisco (and all other governmental entities in California) be barred from playing favorites by race and sex, and be forced to obey the state Constitution and basic principles of fairness, equality and justice."

The case is Coral Construction, Inc. v. City and County of San Francisco. 

PLF’s opening brief to the state Supreme Court is here.   

– PLF's reply brief to the state Supreme Court is here.

– PLF's letter-brief responding to California AG Jerry Brown's brief is here.

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