CA Sup. Court Upholds Affirmative Action Ban

By Laura Strachan, Esq. on August 04, 2010 | Last updated on March 21, 2019

In the clash of the California Constitution and a San Francisco affirmative action program, the constitution prevails ... for now. The California Supreme Court, in a 6-1 decision, recently held up the state's affirmative action ban in public programs. At issue in this case was whether a San Francisco ordinance, designed to aid minorities and female-owned businesses in the public contracting process, was counter to Proposition 209 -- a law that prohibits race and sex-based discrimination or preferences in government contracting, employment, and education.

The question of whether the San Francisco program is serving to facilitate preferential treatment or equal access will be remanded to lower courts to review. A winning challenge to Prop. 209 will rest on a successful showing that San Francisco has a history of intentional or purposeful discrimination against minorities and women, such that the ordinance is necessary to undo those effects. The San Francisco law gave a 5-10% preference to women and minorities in the contracting bids submitted to the city.

The city of San Francisco argued that Proposition 209 violates the United States Constitution by targeting minority groups and placing limits on their ability to realize their equal rights. The ratoinale behind this argument rested on San Francisco's history of race and gender-based discrimination in the realm of contract bids. The suit was successfully brought by the Pacific League Foundation on behalf of companies that felt the negative effects of the local ordinance. Pacific League Foundation principal attorney on the case, Sharon Browne, stated on the foundation's website that, "Proposition 209 is a civil rights measure that protects everyone, regardless of background. Under Proposition 209, no one can be victimized by unfair government policies that discriminate or grant preferences based on sex or skin color."

Just how can San Francisco prove a history of discrimination? Courts have recognized limited circumstances in which the presence of past discrimination is a compelling interest, thereby making the ordinance a necessary remedial measure. More specifically, the city would also have to show that the ordinance was the only way to fix any deep-rooted discrimination in city contracting awards. However, this is a very high standard to meet and one that requires a showing of a pattern, rather than unrelated incidents, of bias in contract awards against women and minorities.

Although the current case represents the first challenge to Proposition 209 in recent times, issues revolving around race and gender discrimination are notoriously controversial for this reason -- there is no simple solution to past and potential discrimination issues. This will be an interesting case to follow in the lower courts to see if San Francisco can craft an argument that meets the legal hurdles the court placed before it.

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