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California high court rules affirmative action ban constitutional

By Dwyer Arce

[JURIST] The Supreme Court of California [official website] on Monday held 6-1 [opinion, PDF] that a state ban on preferential hiring practices for minorities and women does not violate the federal Constitution [text]. Justice Kathryn Werdegar, writing for the majority, held that the ban on giving preferential treatment in the awarding of public contracts under the Article I, Section 31 of the California Constitution [text] did not violate the Equal Protection Clause [Cornell LII backgrounder] of the US Constitution. Despite the ban, passed as Proposition 209 by voters in 1996, the city of San Fransisco had continued to enforce a local ordinance requiring the preferential treatment of minorities and women in awarding public contracts. The city, citing the US Supreme Court [official website] cases of Washington v. Seattle School Dist. No. 1 and Hunter v. Erickson [texts] had argued that Section 31 was unenforceable because it violated the political structure doctrine by removing the ability of women and minorities to seek redress to discrimination from local authorities. The court held that in those cases, equal protection principles that were required by the US Constitution were being violated, whereas here the city policy was not similarly required, stating:

Most importantly for present purposes, section 31 prohibits race- and gender-conscious programs the federal equal protection clause permits but does not require. ... [S]ection 31 categorically prohibits discrimination and preferential treatment. ... Section 31 poses no obstacle ... to race- or gender-conscious measures required by federal law or the federal Constitution. ... [T]he [Equal Protection] clause renders racial classifications presumptively invalid, regardless of purported motivation, and tolerates them only when narrowly tailored to serve compelling governmental interests. Section 31 is consistent with equal protection, under this analysis, because "[a] law that prohibits the State from classifying individuals by race or gender a fortiori does not classify individuals by race or gender," and because the federal Constitution does not oblige the state to permit racial classifications the federal Constitution itself does not require. "That the Constitution permits the rare race-based or gender-based preference hardly implies that the state cannot ban them altogether."

The court also noted that the city had made an identical argument to the US Court of Appeals for the Ninth Circuit [official website] in Coalition for Economic Equity v. Wilson [text], which also failed. The court went on to remand the case to determine if the city's preferential treatment policy is required under the Equal Protection Clause to remedy the city's own past discrimination. Justice Carlos Moreno, the lone dissenter, argued that Section 31 did violate the political structure doctrine because it "singles out a racial issue for special treatment inasmuch as it draws a distinction between groups seeking beneficial legislation on the basis of race and sex."

In April 2009, California Attorney General Edmond Brown [official website] argued in a letter to the court [JURIST report] that portions of Proposition 209 may violate the US Constitution. Brown sent the letter regarding the case decided on Monday, Coral Construction v. City and County of San Francisco [case materials]. The city policy had been struck down [JURIST report] by the San Francisco Superior Court [official website] in 2004 as being in violation of Proposition 209. In his letter, Brown said portions of the amendment may be unconstitutional under the Equal Protection Clause, "creat[ing] an unequal political structure based on race and gender that is not narrowly tailored to achieve a compelling governmental interest[,] ... accomplish[ing] the very evil it purported to eliminate, viz. racial and gender discrimination."

Full post as published by JURIST - The Paper Chase on August 03, 2010 (boomark / email).