August 28, 2015

PLF prevents latest attempt to limit Proposition 209

By Meriem L. Hubbard Senior Attorney

Last month I blogged about the case of Baez v. California Public Employees’ Retirement System, where a Los Angeles Appellate court fundamentally changed the application of Proposition 209 to include only one kind of discrimination–that involving preferential treatment.  The Baez court is the first to hold that Proposition 209 does not cover prejudicial treatment of minorities.

PLF sent a letter brief to the California Supreme Court, arguing that the opinion should be depublished, which means it cannot be cited as legal precedent in later cases.  On August 19, the Court agreed, ordering that “[t]he Reporter of Decisions is directed not to publish [the opinion] in the Official Appellate Reports.”

PLF has been the primary defender of Proposition 209 from the beginning.  Examples are here and here.   Since its adoption by the voters in 1996, state and local governments, and various advocacy groups, have argued the Proposition 209 violates federal law under several theories.  PLF has litigated every significant challenge, including the following:

(1)   Does Proposition 209 deny racial minorities rights guaranteed by the Fourteenth Amendment (equal protection to all individuals);

(2)  Is Proposition 209 void under the Supremacy Clause, because it conflicts with various provisions of federal law (e.g., Title VII of the Civil Rights Act of 1964);

(3)  Is Proposition 209 preempted by the International Convention of the Elimination of All Forms of Racial Discrimination (allowing “special measures” to advance racial and ethnic groups or individuals);

(4)  Are government entities compelled by the Federal Equal Protection Clause to provide racial preferences to remedy their own pervasive, past discrimination (at issue is the distinction between whether race preferences are compelled or allowed).

The first three of these arguments have been ruled upon by at least on court, and solidly rejected.  The fourth argument, that a governmental entity is compelled to adopt race preferences, is at issue in PLF’s long-running case in which Coral Construction and Schram Construction sued San Francisco.  In that case, San Francisco argues as follows:  Because Proposition 209 does not allow the sort of race-conscious programs that are merely permitted under the Federal Equal Protection Clause, the City is required to adopt race-preferences to remedy its own active and passive discrimination in public contracting.

PLF disagrees.   No court has required that a government entity adopt race-conscious public contracting polices.  Indeed, San Francisco is the first to seriously contend that it must adopt preferences under the Equal Protection Clause.  PLF argues that the City has not proven, and cannot prove, that it purposefully acted to discriminate against minorities.  PLF’s briefs are here and here. The case was fully briefed two years ago, but no date for oral argument has been set.

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