Affirmative action ban not unconstitutional, California Supreme Court rules

Reporting from San Francisco

The California Supreme Court ruled Monday that Proposition 209, the ballot measure that banned affirmative action by government, did not violate the federal Constitution.

In a 6-1 ruling, the majority rejected a defense argued by San Francisco after it was sued over a program that gave women and minorities an advantage in obtaining city contracts.

The court said the affirmative action program may continue only if the city shows it was narrowly tailored to address intentional discrimination by the city against businesses owned by women and minorities and that preferences were necessary to rectify the discrimination.

“Even in the rare case in which racial preferences are required by equal protection as a remedy for discrimination, the governmental body adopting such remedies must undertake an extraordinary burden of justification,” Justice Kathryn Mickle Werdegar wrote for the majority.

San Francisco Deputy City Atty. Sherri Kaiser said the ruling was “the first time that any case has acknowledged that Proposition 209 is not a flat-out bar to affirmative action programs.”

Although disappointed that the court failed to declare the 1996 initiative unconstitutional, Kaiser said she believed the city would be able to justify its program.

The Pacific Legal Foundation, a conservative public interest law firm that sued San Francisco on behalf of two companies, disagreed, predicting that the contracting preferences were doomed.

“We are poised for ultimate victory in this case, because it is already clear that San Francisco has no evidence to support its claim of past intentional discrimination by the city or its contractors against minorities and women,” said Sharon L. Browne, principal attorney for the foundation.

San Francisco had argued that Proposition 209 violated the so-called political structure doctrine, an interpretation by courts of the federal equal protection clause. The doctrine prohibits government from creating structures that make it difficult for minority groups to obtain beneficial laws.

The majority rejected that contention, observing that federal courts have determined that the doctrine does not invalidate state laws that broadly ban racial and gender preferences and discrimination.

In a dissent, Justice Carlos R. Moreno contended that Proposition 209 was unconstitutional because it was explicitly race-conscious and established “a steep hurdle” for those seeking preferences for race and sex.

Proposition 209 cannot be modified without voter approval of a constitutional amendment, whereas other kinds of preferences can be approved by a mere vote of a city council or other governmental agency, he said.

“This unique burden on the ability of women and racial minorities to achieve beneficial legislation in their interest is what violates the political structure doctrine, and thus the Constitution,” Moreno wrote.

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