- The Washington Times - Tuesday, September 26, 2000

Proposition 209 affirmative action racial preferences

''What part of 'No' don't you understand?" That quip, sometimes seen on T-shirts, might come to mind when you consider the many local governments in California that act as if they don't understand Proposition 209, the anti-discrimination initiative passed by the state's voters in 1996.

Proposition 209 says "No" to quotas and special benefits because of sex or skin color. It says state and local government may not discriminate against or grant preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in public employment, education or contracting.

A simple, clear directive. But not clear enough, it seems, for many bureaucrats and elected officials around the state. A survey last year by Pacific Legal Foundation found scores of California cities, counties, school districts and utility agencies defying Proposition 209 by continuing to impose racial preferences.

One of the violators is the city of San Jose, whose public-works contracting policies were the focus of a widely monitored hearing before the California Supreme Court earlier this month. The case of Hi-Voltage Wire Works vs. San Jose marks the first time that California's High Court has been called on to interpret the scope of Proposition 209, so the case carries implications for hundreds of local jurisdictions. The issue boils down to whether a public entity can get away with racial preferences by deceptively calling them "outreach efforts."

San Jose requires general contractors either to meet precise race and sex quotas in the hiring of subcontractors or to document recruitment steps aimed only at minority and women subcontractors, whether or not those subcontractors are genuinely disadvantaged. This is not outreach in the real sense; it does not reach out to the entire spectrum of subcontracting businesses. Rather, it shows favoritism to a narrow slice of the community, based on skin color or chromosomes. The questions and comments from the bench on Wednesday indicated that most members of the Supreme Court understand that such preferences can't be squared with Proposition 209.

Justice Joyce Kennard labeled one of the San Jose requirements an unconstitutional quota mandate. She also read from an article by University of Southern California Law Professor Erwin Chemerinsky (a Proposition 209 opponent) in which he warned, prior to the initiative's enactment, that it would invalidate programs with features like San Jose's. Justice Kathryn Werdegar noted that a 1996 legislative analyst's report also indicated Proposition 209 would outlaw such programs.

Chief Justice Ronald George asked whether a city could fashion a broad outreach program that would not merely target selected racial groups. Clearly that's possible. City officials could recruit through general advertising or by instituting telephone hotlines. They could run workshops to help businesses negotiate the complexities of the contracting process. The variety of race-neutral outreach initiatives is limited only by one's imagination.

A decision in the San Jose case is due from the Supreme Court within 90 days. Although most of the justices seem to understand the principles at stake, there are still a couple of aspects of the litigation that leave a sour taste. One is the involvement of Democratic California Attorney General Bill Lockyer. He chose this case to make his first-ever appearance in oral argument before the state Supreme Court. But instead of standing up for Proposition 209, as you might expect the state's chief law-enforcement officer to do, he tried to undermine it. He urged that it be read to permit San Jose's racially targeted policies. Mr. Lockyer claimed to be arguing on behalf of the people, but he was not representing the millions who voted for Proposition 209 precisely because it promised to ban deviations from fairness and equal application of the law.

The Clinton administration has also intruded in the case. The Justice Department filed a friend-of-the-court brief that tries to coach localities on getting around Proposition 209. It claims that if a local government gins up a report alleging past discrimination, federal law may demand race preferences as a remedy. This argument is a non-starter; the Supreme Court has never mandated new discrimination as a response to old discrimination in the contracting field. Still, the administration is lending aid and comfort to all those jurisdictions that insist on acting as if Proposition 209 was written in disappearing ink. It appears that "mend it, don't end it," is code for giving racial preferences a new lease on life.

U.S. Census figures now show that whites are no longer a majority in California. When every racial group is now a minority, aren't racial spoils systems more ludicrous and more dangerous than ever? Defining individuals by skin color and apportioning advantages on that basis is a sure formula for pitting people and groups against each other.

Thankfully, there's hope that the Golden State's Supreme Court is ready to declare that Proposition 209, and its insistence on a colorblind ethic in the public sector, can no longer be brazenly ignored.

Harold Johnson is an attorney with the Sacramento-based Pacific Legal Foundation, which represents the plaintiffs in the case of Hi-Voltage Wire Works vs. San Jose.

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