Citation 50 Cal. 4th 315, 235 P.3d 947, 113 Cal. Rptr. 3d 279
Coral Construction v. S.F.
Filed 8/2/10
IN THE SUPREME COURT OF CALIFORNIA
CORAL CONSTRUCTION, INC.,
Plaintiff and Respondent,
S152934
v.
Ct.App. 1/4 A107803
CITY AND COUNTY OF SAN
FRANCISCO et al.,
(San Francisco County
Super. Ct. No. 319549)
Defendants and Appellants.
____________________________________)
SCHRAM CONSTRUCTION, INC.,
Plaintiff and Respondent,
v.
(San Francisco County
Super. Ct. No. 421249)
CITY AND COUNTY OF SAN
FRANCISCO et al.,
Defendants and Appellants.
Article I, section 31 of the California Constitution (section 31) forbids a city
awarding public contracts to discriminate or grant preferential treatment based on
race or gender. (See generally Hi-Voltage Wire Works, Inc. v. City of San Jose
(2000) 24 Cal.4th 537 (Hi-Voltage).) Here, a city whose public contracting laws
expressly violate section 31 challenges its validity under the so-called political
structure doctrine, a judicial interpretation of the federal equal protection clause.
1
(U.S. Const., 14th Amend.; see generally Washington v. Seattle School Dist. No. 1
(1982) 458 U.S. 457 (Seattle) and Hunter v. Erickson (1969) 393 U.S. 385
(Hunter).) We conclude section 31 does not violate the political structure
doctrine.
I. BACKGROUND
For the last 26 years, defendant City and County of San Francisco (City) has
preferentially awarded public contracts to minority-owned business enterprises
(MBE‟s) and women-owned business enterprises (WBE‟s). The City‟s Board of
Supervisors (Board) has mandated these preferences in a series of ordinances
adopted over time, justifying each with legislative findings purporting to show
continuing discrimination by the City against MBE‟s and WBE‟s. The details of
the program have evolved, partly in response to changes in the law governing the
validity of such preferences. Plaintiffs Coral Construction, Inc. (Coral) and
Schram Construction, Inc. (Schram) challenge the 2003 version of the ordinance1
as unconstitutional under section 31.
The City‟s first MBE/WBE ordinance, adopted in 1984, set aside specified
percentages of public contracting dollars for MBE‟s and WBE‟s. The ordinance
also gave bid discounts, which required the City‟s contracting authorities to treat
bids by MBE‟s and WBE‟s as if they were lower than they in fact were. Both the
set-asides and the bid discounts afforded MBE‟s and WBE‟s a competitive
advantage over other bidders.
In 1989, the United States Court of Appeals for the Ninth Circuit held the
City‟s 1984 ordinance violated the federal equal protection clause (U.S. Const.,
1
(Version V of “Minority/Women/Local Business Utilization Ordinance,”
S.F. Ord. No. 134-03 (approved June 6, 2003, expired June 30, 2009 [see fn. 4,
post]) codified as S.F. Admin. Code, § 12D.A.1—12D.A.22.)
2
14th Amend.) in giving preferences based on race, and that it also violated the
City‟s own charter in several respects. (Assoc. Gen. Contr. of Cal. v. City &
County of S.F. (9th Cir. 1987) 813 F.2d 922, 944.) Shortly thereafter, the United
States Supreme Court determined that Richmond, Virginia‟s MBE set-asides
violated equal protection. (Richmond v. J.A. Croson Co. (1989) 488 U.S. 469,
498-506 (Croson).) The legislative findings supporting Richmond‟s program did
not show the requisite “ „strong basis in evidence for [the city‟s] conclusion that
remedial action was necessary.‟ ” (Id., at p. 500, quoting Wygant v. Jackson
Board of Education (1986) 476 U.S. 267, 277 (plur. opn. of Powell, J.).) Four
justices suggested, however, that in “the extreme case” not presented in Croson,
“some form of narrowly tailored racial preference might be necessary” as a
remedy “to break down patterns of deliberate exclusion.” (Croson, at p. 509 (plur.
opn. of O‟Connor, J.).)
Responding to these judicial decisions, San Francisco‟s Board in 1989 passed
a new ordinance eliminating set-asides but retaining bid discounts and other
preferences for MBE‟s and WBE‟s. When an organization of businesses sued to
enjoin the ordinance‟s enforcement, the City argued the equal protection clause
required preferences as a remedy for discrimination. The federal district court
declined to issue interim relief because the plaintiffs had failed to demonstrate a
sufficient likelihood of success on the merits. (Associated General Contractors v.
San Francisco (N.D.Cal. 1990) 748 F.Supp. 1443, 1456.) The Ninth Circuit
affirmed. (Associated Gen. Contractors of Cal. v. Coalition (9th Cir. 1991) 950
F.2d 1401, 1418.)
The voters approved Proposition 209 at the November 1996 general election,
thus adding section 31 to article I of the state Constitution. Section 31 declares
that the state, including its political subdivisions, “shall not discriminate against,
or grant preferential treatment to, any individual or group on the basis of race, sex,
3
color, ethnicity, or national origin in the operation of public employment, public
education, or public contracting.” (§ 31, subd. (a).) The next year, the Ninth
Circuit held section 31 did not violate the federal equal protection clause, as
interpreted in the political structure cases (e.g., Seattle, supra, 458 U.S. 457, and
Hunter, supra, 393 U.S. 385), and vacated a preliminary injunction against section
31‟s enforcement issued by the district court. (Coalition for Economic Equity v.
Wilson (9th Cir. 1997) 122 F.3d 692, 711 (Wilson), vacating judg. in (N.D.Cal.
1996) 946 F.Supp. 1480.)
At the time the voters adopted section 31, the MBE/WBE ordinance then in
effect was set to expire on October 31, 1998. Before the ordinance expired, the
City‟s Board and its Human Rights Commission (HRC) conducted investigations
for the stated purpose of “gaug[ing] the effectiveness of the prior [MBE/WBE]
Ordinances . . . and to assess the need for further and continuing action.” (S.F.
Admin. Code, former § 12D.A.2.)2 The Board found that MBE‟s and WBE‟s
were receiving a smaller share of City contracts than would be expected based on
their availability, and that “[t]his poor utilization [could not] be attributed to
chance” and was, instead, “due to discrimination by the City and discrimination in
the private market.” (S.F. Admin. Code, former § 12D.A.2.2.) In legislative
findings setting out the basis for this conclusion, the Board cited its own statistical
studies, similar studies by other governmental entities in the San Francisco Bay
Area, testimony and oral histories recounting anecdotes of discrimination, “social
2
Citations to “former” section 12D.A. of the San Francisco Administrative
Code refer to version IV of the “Minority/Women/Local Business Utilization
Ordinance” (S.F. Ord. 296-98, approved Oct. 5, 1998). All other citations to
section 12D.A. refer to version V of this ordinance (S.F. Ord. 134-03, approved
June 1, 2003, expired June 30, 2008).
4
science materials concerning discrimination against women and minorities in the
Bay Area and in public contracting,” and data showing that “the decision makers
in the City contracting process — the City department heads and general and
deputy managers — have been and continue to be overwhelmingly Caucasian
males” operating under an “ „old boy network.‟ ” (S.F. Admin. Code, former
§ 12.D.A.2 (findings 1, 15).)
Based on these findings, the Board in 1998 adopted a new ordinance
preserving bid discounts for MBE‟s and WBE‟s, and requiring prime contractors
either to use MBE and WBE subcontractors at levels set by the HRC or to make
good faith efforts to do so through preferential outreach efforts targeted at such
businesses. (S.F. Admin. Code, former §§ 12D.A.4, 12D.A.5, 12D.A.17.)
In 2000, while San Francisco‟s 1998 ordinance was still in effect, we held
that section 31 invalidated the City of San Jose‟s public contracting program
because it mandated participation goals for, and preferential outreach efforts
directed to, MBE‟s and WBE‟s. (Hi-Voltage, supra, 24 Cal.4th 537, 562-565.)
Section 31 does not tolerate, we explained, race- and gender-conscious preferences
the equal protection clause does not require but merely permits. (See Hi-Voltage,
at p. 567.) Like the plurality in Croson, supra, 488 U.S. 469, however, we held
out the possibility that the federal equal protection clause might sometimes require
race-conscious remedies to remedy intentional discrimination. (Hi-Voltage, at
p. 568 [“Where the state or a political subdivision has intentionally discriminated,
use of a race-conscious or race-specific remedy necessarily follows as the only, or
at least the most likely, means of rectifying the resulting injury.”]; see Croson, at
p. 509 (plur. opn. of O‟Connor, J.).)
In 2001, plaintiff Coral commenced the action now before us in the San
Francisco Superior Court, seeking declaratory and injunctive relief against the
1998 ordinance. The ordinance was set to expire in 2003. (S.F. Admin. Code,
5
former § 12D.A.21.) Before it expired, and while plaintiff‟s action proceeded in
the superior court, the City conducted additional investigations to determine
whether discrimination against MBE‟s and WBE‟s continued. Finding that such
discrimination did continue, the Board in 2003 reenacted the 1998 ordinance
without substantial change. (See S.F. Admin. Code, § 12D.A.2.8.) From that
point on, the action proceeded as a challenge to the 2003 ordinance.
In legislative findings accompanying the 2003 ordinance, the Board once
again relied on statistical studies showing that MBE‟s and WBE‟s were
underutilized, both in San Francisco and the surrounding area, on testimony and
oral histories recounting anecdotes of discrimination, and on social science
materials. (S.F. Admin. Code, § 12D.A.2.) Based on this information, the Board
found that “the race- and gender-conscious remedial programs authorized by [the
MBE/WBE] Ordinance continue to be necessary to remedy discrimination against
minority- and women-owned businesses in City prime contracting and
subcontracting.” (S.F. Admin. Code, § 12D.A.2.8.) The Board also found “that
the City . . . is actively discriminating against women and minority groups in its
contracting, and is passively participating in discrimination in the private sector.”
(Ibid.) In conclusion, the Board found “that the evidence before it establishes that
the City‟s current contracting practices are in violation of federal law and that, as a
result, [the] ordinance continues to be required by federal law to bring the City
into compliance with federal civil rights laws in its contracting practices.” (Ibid.)
More specifically, the Board found that “the following discriminatory
practices [identified by the HRC in 1998 were still] at work in City contracting:
(1) listing [MBE‟s and WBE‟s] as subcontractors but never using the listed [MBE
and WBE] subcontracting firms, (2) the use of additional nonminority, male
subcontractors never listed on the relevant HRC forms, and (3) the creation of
fraudulent joint ventures involving minority- or women-owned and majority, men-
6
owned firms.” (S.F. Admin. Code, § 12D.A.2.7.) The Board also noted the HRC
in 2003 “ha[d] encountered . . . additional discriminatory practices in City
contracting,” including: “(1) attempts by City personnel to improperly influence
contract selection panels to ensure that MBEs/WBEs do not obtain City prime
contracts; (2) attempts by City personnel to blame MBEs/WBEs unjustifiably for
project delays; (3) the imposition of unnecessary minimum requirements on City
contracts that act as a barrier to MBEs/WBEs; (4) the failure by City departments
to submit draft requests for proposals to HRC with sufficient time to permit the
HRC to ensure that adequate MBE/WBE subcontracting goals have been set;
(5) attempts by City departments to circumvent the requirements of [the 1998]
ordinance by extending or modifying existing contracts rather than putting new
contracts out to bid; (6) the failure by City departments to comply with the prompt
payment provisions of this ordinance which ensure that MBEs/WBEs do not suffer
unnecessary financial hardships; and (7) resistance by City prime contractors to
provid[ing] the City with required subcontractor payment information, making it
difficult for the City to ensure that MBE/WBE subcontractors receive prompt
payment for their work on City contracts.” (Ibid.)
The City‟s 2003 statistical studies showed that MBE‟s and WBE‟s continued
“to receive a smaller share of certain types of contracts for the purchases of goods
and services by the City than would be expected” based on their availability. (S.F.
Admin. Code, § 12.D.A.2.3.) The studies also showed, however, that MBE‟s and
WBE‟s received a larger share of other types of contracts. To note just a few
examples, the City used African-American MBE‟s at 10 times, and WBE‟s at
more than three times, the expected rate for professional services subcontracts, and
used Latino MBE‟s at more than twice the expected rate for construction prime
and subcontracts. (S.F. Admin. Code, §§ 12D.A.2.4, 12D.A.2.5.) The Board
explained its overuse of MBE‟s and WBE‟s as “attributable to the fact that the
7
City has remedial contracting programs in place,” and found that to discontinue
the use of preferences would cause MBE and WBE utilization rates to “plummet.”
(Id., § 12D.A.2.4.) In comparison, non-MBE/WBE firms were slightly overused
in most areas of City contracting, significantly overused in a few areas, and
substantially overused only in prime contracts for architecture and engineering (by
40 percent) and prime and subcontracts for telecommunications (by 10 and 23
percent, respectively).
In contrast to 1998, the Board in 2003 no longer found that decisionmakers in
the City‟s contracting process were overwhelmingly Caucasian males. (Compare
S.F. Admin. Code, former § 12D.A.2.1 with id., present § 12D.A.2 [deleting the
prior finding].) The Board noted, however, that “[m]inorities and women [had]
report[ed] that project managers in many City Departments continue to operate
under an „old boy network[‟] in awarding City prime contracts.” (Id.,
§ 12.DA.2.6.)
The operative provisions of the 2003 ordinance give bid discounts that range
from 5 to 10 percent, depending on the level of MBE/WBE participation. (S.F.
Admin. Code, § 12D.A.9.2.) For each proposed prime contract, the director of the
HRC sets MBE/WBE participation goals based on the availability of MBE/WBE
subcontractors and the extent of subcontracting opportunities available. (Id.,
§ 12D.A.17(C).) Prospective prime contractors must demonstrate in their bids that
they have made good-faith efforts to use MBE/WBE subcontractors, and must also
identify the particular MBE/WBE subcontractors to be employed and the dollar
value of their participation. (Id., § 12D.A.17(D).) The director may waive the
MBE/WBE subcontracting goals only on a showing that subcontracting is
infeasible given the project‟s requirements, that MBE/WBE subcontractors are
unavailable, or that the available MBE‟s/WBE‟s “have given price quotes that
exceed competitive levels beyond amounts that can be attributed to cover costs
8
inflated by the present effects of discrimination.” (Id., § 12D.A.17(G)3; see also
id., § 12D.A.17(G)1, 2.) Bids that do not satisfy these requirements, or that do not
meet the Director‟s MBE/WBE participation goals, “shall be declared
nonresponsive.” (Id., § 12D.A.17(D).)
The 2003 ordinance defines “minority,” and thus the groups whose
businesses are entitled to be certified as MBE‟s, to include “African Americans
(defined as persons whose ancestry is from any of the Black racial groups of
Africa or the Caribbean); Arab Americans (defined as persons whose ancestry is
from an Arabic speaking country that is a current or former member of the League
of Arab States); Asian Americans (defined as persons with Chinese, Japanese,
Korean, Pacific Islander, Samoan, Filipino, Asian Indian, and Southeast Asian
Ancestry); Iranian Americans (defined as persons whose ancestry is from the
country of Iran); Latino Americans (defined as persons with Mexican, Puerto
Rican, Cuban, Central American or South American ancestry[; p]ersons with
European Spanish ancestry are not included as Latino Americans . . .); and Native
Americans (defined as any person whose ancestry is from any of the original
peoples of North America, and who maintains cultural identification through tribal
affiliation or community recognition[)].” (S.F. Admin. Code, § 12D.A.5.)
Finally, the 2003 ordinance declares as a matter of policy that “[t]he City will
continue to rely on the relationship between the percentages of MBEs/WBEs in
the relevant sector of the San Francisco business community and their respective
shares of City contract dollars as a measure of the effectiveness of this ordinance
in remedying the effects of the aforementioned discrimination.” (S.F. Admin.
Code, § 12D.A.3.)
After the City adopted the 2003 ordinance, plaintiff Schram commenced a
separate action challenging its validity under section 31 and seeking declaratory
and injunctive relief. Schram and the City filed cross-motions for summary
9
judgment. When briefing on the motions in Shram was complete, the parties to
Coral joined in the motions, and all parties in both cases stipulated that no further
briefing or record submissions would be necessary to permit the court to issue
rulings on summary judgment in both cases. In view of the stipulation, the
superior court consolidated Shram and Coral for all purposes.
The superior court granted plaintiffs‟ motion and denied the City‟s. Relying
on Hi-Voltage, supra, 24 Cal.4th 537, the court held the 2003 ordinance violated
section 31. Relying on the Ninth Circuit‟s decision in Wilson, supra, 122 F.3d
692, the court held section 31 did not violate the political structure doctrine.
Finally, the court concluded the ordinance was not required to avoid a loss of
federal funds and was, thus, not exempt from section 31 on that basis. (See § 31,
subd. (e).3) As relief, the court entered a permanent injunction prohibiting the
City from enforcing the 2003 ordinance or any similar program in the future. The
Court of Appeal affirmed in part, reversed in part, and remanded for adjudication
of the City‟s claim that the federal equal protection clause required the ordinance.
We granted review.4
3
“Nothing in this section shall be interpreted as prohibiting action which
must be taken to establish or maintain eligibility for any federal program, where
ineligibility would result in a loss of federal funds to the State.” (§ 31, subd. (e).)
4
The 2003 ordinance expired by its own terms on June 30, 2008. (S.F.
Admin. Code, § 12D.A.22.) The case is not therefore moot, however, because the
injunction bars the City from adopting any similar ordinance in the future, and
because there is no reason to believe the City would not, but for the injunction,
renew its long-standing mandate for race- and gender-based preferences. In any
event, no party has asked us to dismiss review.
10
II. DISCUSSION
A. The Political Structure Doctrine.
We first address the City‟s argument that section 31 violates the political
structure doctrine — an aspect of federal equal protection articulated in Seattle,
supra, 458 U.S. 457, and Hunter, supra, 393 U.S. 385. The City raised this issue
in its cross-motion for summary judgment as a ground for judgment in its favor.
Accordingly, the City‟s burden is to show “that there is no triable issue as to any
material fact and that [it] is entitled to judgment as a matter of law.” (Code Civ.
Proc., § 437c, subd. (c).) We review the matter de novo because it comes to us as
a ruling on a motion for summary judgment. (Johnson v. City of Loma Linda
(2000) 24 Cal.4th 61, 67-68.) We requested briefing on the issue,5 and now hold
that section 31 does not violate equal protection.
To determine whether California‟s section 31 is consistent with the federal
equal protection clause (U.S. Const., 14th Amend.) we must first make clear what
the state provision means. As the Legislative Analyst explained in the official
ballot pamphlet presenting the proposed measure to the voters, section 31 was
intended to “eliminate state and local government affirmative action programs in
the areas of public employment, public education, and public contracting to the
extent these programs involve „preferential treatment‟ based on race, sex, color,
ethnicity, or national origin. The specific programs affected by the measure,
however, . . . depend on such factors as (1) court rulings on what types of activities
5
Specifically, we asked whether “article I, section 31, of the California
Constitution, which prohibits government entities from discrimination or
preference on the basis of race, sex, or color in public contracting, improperly
disadvantage[s] minority groups and violates equal protection principles by
making it more difficult to enact legislation on their behalf[.] (See [Seattle,
supra,] 458 U.S. 457; [Hunter, supra,] 393 U.S. 385.)”
11
are considered „preferential treatment‟[6] and (2) whether federal law requires the
continuation of certain programs.” (Ballot Pamp., Gen. Elec. (Nov. 5, 1996)
analysis of Prop. 209 by Legis. Analyst, p. 30.) Section 31‟s ban on preferences
includes certain exceptions. The provision does not affect “bona fide
qualifications based on sex” (§ 31, subd. (c)), existing court orders or consent
decrees (id., subd. (d)), and actions which must be taken to avoid a loss of federal
funds to the state (id., subd. (e)). (See Ballot Pamp., supra, analysis of Prop. 209,
p. 30.)
Most importantly for present purposes, section 31 prohibits race- and gender-
conscious programs the federal equal protection clause permits but does not
require. As we explained in Hi-Voltage, supra, 24 Cal.4th 537, 567, “[e]qual
protection allows discrimination and preferential treatment whenever a court
determines they are justified by a compelling state interest and are narrowly
tailored to address an identified remedial need.” In contrast, “section 31
categorically prohibits discrimination and preferential treatment. Its literal
language admits no „compelling state interest‟ exception [and] we find nothing to
suggest the voters intended to include one sub silentio.” (Ibid.) Section 31 poses
no obstacle, however, to race- or gender-conscious measures required by federal
law or the federal Constitution. This is the inescapable effect of the supremacy
6
In Hi-Voltage, supra, 24 Cal.4th 537, we concluded that section 31 uses the
terms “discrimination” and “preferential treatment” in their “ „natural and ordinary
meanings . . . .‟ ” (Hi-Voltage, at p. 559, quoting Amador Valley Union High Sch.
Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 245.) Thus, to
“ „[d]iscriminate‟ means „to make distinctions in treatment; show partiality (in
favor of) or prejudice (against),‟ ” and “ „preferential‟ means giving „preference,‟
which is „a giving of priority or advantage to one person . . . over others.‟ ” (Hi-
Voltage, at pp. 559-560, quoting Webster‟s New World Dict. (3d college ed. 1988)
pp. 392, 1062.)
12
clause (U.S. Const., art. VI, § 2), which section 31 implicitly acknowledges in a
savings clause.7
Addressing an identical challenge to section 31, the Ninth Circuit in Wilson,
supra, 122 F.3d 692, 701, observed that, “[a]s a matter of „conventional‟ equal
protection analysis, there is simply no doubt that [section 31] is constitutional.”
The clause provides that “[n]o state shall . . . deny to any person within its
jurisdiction the equal protection of the laws.” (U.S. Const., 14th Amend., § 1.)
“A core purpose” of the clause is to “do away with all governmentally imposed
discrimination based on race” (Palmore v. Sidoti (1984) 466 U.S. 429, 432,
fn. omitted), thus ultimately helping to create “a political system in which race no
longer matters” (Shaw v. Reno (1993) 509 U.S. 630, 657). To further this goal, the
clause renders racial classifications presumptively invalid, regardless of purported
motivation (Nevada Dept. of Human Resources v. Hibbs (2003) 538 U.S. 721,
736; Personnel Administrator of Mass. v. Feeney (1979) 442 U.S. 256, 272), and
tolerates them only when narrowly tailored to serve compelling governmental
interests (Adarand Constructors, Inc. v. Pena (1995) 515 U.S. 200, 224, 226-227
(Adarand)). 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” (Wilson, at
p. 702), and because the federal Constitution does not oblige the state to permit
racial classifications the federal Constitution itself does not require. “That the
7
“If any part or parts of this section are found to be in conflict with federal
law or the United States Constitution, the section shall be implemented to the
maximum extent that federal law and the United States Constitution permit.”
(§ 31, subd. (h) [in relevant part].)
13
Constitution permits the rare race-based or gender-based preference hardly implies
that the state cannot ban them altogether.” (Id., at p. 708.)
To argue that section 31 violates equal protection, the City invokes the rarely
used political structure doctrine. The doctrine has its origin in Hunter, supra, 393
U.S. 385, and Seattle, supra, 458 U.S. 457, and its parameters necessarily emerge
from those decisions.
In Hunter, supra, 393 U.S. 385, a realtor in Akron, Ohio refused to show
homes to an African-American prospective buyer. When the buyer sued to
compel the city to enforce its fair housing ordinance, the city‟s voters repealed the
ordinance and amended the city charter to require a referendum before any new
ordinance on the same subject could take effect. (Id., at pp. 386-387.) The high
court held the charter amendment violated equal protection. While the provision
“declare[d] no right to discriminate in housing” (id., at p. 389), it still contained
“an explicitly racial classification,” in the sense that it “treat[ed] racial housing
matters differently from other racial and housing matters” (ibid.). “The automatic
referendum system [did] not,” for example, “reach housing discrimination on
sexual or political grounds, or against those with children or dogs, nor [did] it
affect tenants seeking more heat or better maintenance from landlords, nor those
seeking rent control, urban renewal, public housing, or new building codes.” (Id.,
at p. 391.) The referendum system placed a burden only on the minority, the court
explained, because “[t]he majority needs no protection against discrimination and
if it did, a referendum might be bothersome but no more than that.” (Ibid.) While
the city might properly have changed the existing ordinance by “majority vote at
[a] town meeting” (id., at p. 392), the city “instead chose[] a more complex
system. Having done so,” the court concluded, “the [city] may no more
disadvantage any particular group by making it more difficult to enact legislation
14
in its behalf than it may dilute any person‟s vote or give any group a smaller
representation than another of comparable size.” (Id., at pp. 392-393.)
In Seattle, supra, 458 U.S. 457, the governing board of a Washington public
school district voluntarily adopted a plan to end de facto racial segregation by
busing pupils to reduce racial imbalance in individual schools. (Id., at pp. 460-
461.) The state‟s voters responded by amending the state‟s constitution to prohibit
busing for the purpose of desegregation, while still allowing busing for most of the
other reasons for which pupils were already being transported (e.g., to provide
special education and reduce overcrowding). (Id., at pp. 461-463, 471.) Relying
on Hunter, supra, 393 U.S. 385, the high court held the state constitutional
provision violated equal protection. The state provision, the court explained,
“remove[d] the authority to address a racial problem — and only a racial problem
— from the existing decisionmaking body, in such a way as to burden minority
interests.” (Seattle, at p. 474.) The provision burdened minority interests by
“lodging decisionmaking authority over the question at a new and remote level of
government.” (Id., at p. 483.) As a result, “[t]hose favoring the elimination of de
facto school segregation now must seek relief from the state legislature, or from
the statewide electorate,” while “authority over all other student assignment
decisions, as well as over most other areas of educational policy, remains vested in
the local school board.” (Id., at p. 474.)
The “political structure” doctrine that emerges from these decisions is
perhaps best summarized in the Seattle majority‟s statement that “the Fourteenth
Amendment . . . reaches „a political structure that treats all individuals as equals,‟
. . . yet more subtly distorts governmental processes in such a way as to place
special burdens on the ability of minority groups to achieve beneficial legislation.”
(Seattle, supra, 458 U.S. 457, 467, quoting Mobile v. Bolden (1980) 446 U.S. 55,
84 (conc. opn. of Stevens, J.).) The City argues this doctrine straightforwardly
15
invalidates section 31 because that provision uses the racial (or gender-based)
nature of an issue (i.e., preferences) to structure governmental decisionmaking, in
the sense that groups that seek race- or gender-based preferences in public
contracting, employment and education must first overcome the obstacle of
amending the state Constitution, while groups that seek preferences on other bases
(e.g., disability or veteran status) need not. Although superficially appealing, the
City‟s argument is not ultimately persuasive. The United States Courts of Appeals
for the Sixth and Ninth Circuits have concluded the political structure doctrine
does not invalidate state laws that broadly forbid preferences and discrimination
based on race, gender and other similar classifications. (See Wilson, supra, 122
F.3d 692, 708-709; Coalition to Defend Affirmative Action v. Granholm (6th Cir.
2006) 473 F.3d 237, 251 (Granholm).) While the lower federal courts‟ decisions
do not bind us, we give them “great weight” when they reflect a consensus, as they
do here. (Barrett v. Rosenthal (2006) 40 Cal.4th 33, 58; Etcheverry v. Tri-Ag
Service, Inc. (2000) 22 Cal.4th 316, 320-321.) Here, exercising our independent
judgment on the matter, we conclude the Sixth and Ninth Circuits‟ decisions are
correct on this point.
In Wilson, supra, 122 F.3d 692, as previously noted, the Ninth Circuit
rejected the City‟s argument that section 31 violates the political structure doctrine
— the same argument the City now repeats in this court. In rejecting the
argument, the Ninth Circuit observed that “[i]mpediments to preferential treatment
do not deny equal protection. It is one thing to say that individuals have equal
protection rights against political obstructions to equal treatment; it is quite
another to say that individuals have equal protection rights against political
obstructions to preferential treatment. While the [federal] Constitution protects
against obstructions to equal treatment, it erects obstructions to preferential
treatment by its own terms.” (Wilson, at p. 708, fn. omitted.) “That the
16
Constitution permits the rare race-based or gender-based preference hardly implies
that the state cannot ban them altogether.” (Ibid.) The Sixth Circuit in Granholm
relied in part on the same reasoning in declining to issue preliminary injunctive
relief against a provision of the Michigan Constitution (id., art. I, § 26) identical to
California‟s section 31. (Granholm, supra, 473 F.3d 237, 251 [impediments to
preferential treatment do not deny equal protection, citing Wilson, at p. 708].)8
The City perceives no important difference between initiatives obstructing
equal treatment and initiatives banning preferences, describing both as “plac[ing]
special burdens on the ability of minority groups to achieve beneficial legislation.”
(Seattle, supra, 458 U.S. 457, 467.) We do not think, however, that the term
“beneficial legislation” can bear the weight the City would place upon it. Nothing
in Hunter, supra, 393 U.S. 385, or Seattle supports extending the political
structure doctrine to protect race- or gender-based preferences that equal
protection does not require.
The ordinance repealed by Akron‟s voters in Hunter, supra, 393 U.S. 385,
merely required equal treatment in the sale and lease of real property. (See id., at
p. 386.) The initiative repealing the ordinance had no apparent consequence but to
perpetuate the unequal treatment of minorities by depriving them of the benefit of
plainly constitutional legislation. (Cf. Reitman v. Mulkey (1967) 387 U.S. 369,
affg. Mulkey v. Reitman (1966) 64 Cal.2d 529.) In no sense did the case concern
preferences, and it therefore offers the City‟s position no support.
8
(See also Coalition to Def. Aff. Act. v. Regents of U. of Mi. (E.D.Mich.
2008) 539 F.Supp.2d 924, 953-958 [dismissing action]; Coalition v. Regents of
University of Michigan (E.D.Mich. 2008) 592 F.3d 948, 950-952 [denying motion
to alter or amend judgment].)
17
Relying instead on Seattle, supra, 458 U.S. 457, the City contends the local
pupil transportation programs involved in that case were “designed to move many
students from schools nearest their homes in order to address „racial imbalances‟
in the schools [and thus] can only be described as providing affirmative, race-
conscious relief.” This characterization of Seattle is accurate, but only so far as it
goes. In arguing that Seattle protects presumptively unconstitutional racial
preferences, the City reads the decision without regard to its historical context and
thus unjustifiably extends its holding. Today the race-conscious pupil assignment
programs repealed by Washington‟s voters would be presumptively
unconstitutional and, thus, subject to strict scrutiny. (See Parents Involved in
Community Schools v. Seattle School Dist. No. 1 (2007) 551 U.S. 701, 720
(Parents Involved).) But at the time Seattle was decided, the high court‟s prior
decisions indicated that the assignment of pupils by ratios to achieve racial balance
fell “within the broad discretionary powers of school authorities” to formulate
“educational policy” and to “prepare students to live in a pluralistic society . . . .”
(Swann v. Board of Education (1971) 402 U.S. 1, 16; see also North Carolina
State Board of Education v. Swann (1971) 402 U.S. 43, 45.) Although the dissent
in Seattle argued that race-conscious pupil-assignment policies were
“presumptively invalid” and required an “extraordinary justification” (see Seattle,
at p. 492, fn. 6 (dis. opn. of Powell, J.)), the majority did not address the
argument.9 Nor does anything in Seattle suggest the high court understood the
9
The majority in Seattle, supra, 458 U.S. 457, noted the litigants had “not
challenge[d] the propriety of race-conscious student assignments for the purpose
of achieving integration, even absent a finding of prior de jure segregation.” (Id.,
at p. 472, fn. 15, citing Swann v. Board of Education, supra, 402 U.S. 1, 16, and
North Carolina State Board of Education v. Swann, supra, 402 U.S. 43, 45.) The
court “therefore [did] not specifically pass on that issue.” (Seattle, at p. 472,
fn. 15.)
18
pupil assignment policies in question as providing unequal preferences, as
opposed simply to “ „equal educational opportunity‟ ” (Seattle, at p. 479, italics
added, quoting Citizens Against Mandatory Bussing v. Palmason (Wn. 1972) 495
P.2d 657, 663) in the plain, immediate sense of sending pupils of different races to
the same schools. Accordingly, Seattle cannot fairly be read as holding that the
political structure doctrine protects presumptively unconstitutional racial
preferences, as opposed to programs intended to bring about immediate equal
treatment. “Even a state law that does restructure the political process can only
deny equal protection if it burdens an individual‟s right to equal treatment.”
(Wilson, supra, 122 F.3d 692, 707.)10
Instead of burdening the right to equal treatment, section 31 directly serves
the principle that “all governmental use of race must have a logical end point.”
(Grutter v. Bollinger (2003) 539 U.S. 306, 342; see also Parents Involved, supra,
551 U.S 701, 760.) As noted, a “core purpose” of the equal protection clause is to
“do away with all governmentally imposed discrimination based on race”
(Palmore v. Sidoti, supra, 466 U.S. 429, 432, fn. omitted), ultimately creating “a
political system in which race no longer matters” (Shaw v. Reno, supra, 509 U.S.
630, 657). Racial preferences are presumptively unconstitutional (Nevada Dept.
of Human Res. v. Hibbs, supra, 538 U.S. 721, 736) and tolerated only when
narrowly tailored to serve compelling governmental interests (Adarand, supra,
515 U.S. 200, 224, 226-227). The requirement that such preferences withstand
strict scrutiny “reflects that racial classifications, however compelling their goals,
10
We do not in any way question the political structure doctrine‟s continuing
validity, despite suggestions to the contrary. (E.g., conc. & dis. opn. of Moreno,
J., post, at pp. 2, 38.) Instead, we merely read Seattle, supra, 458 U.S. 457, in its
historical context to determine how far its holding extends, as we must.
19
are potentially so dangerous that they may be employed no more broadly than the
interest demands. Enshrining a permanent justification for racial preferences
would offend this fundamental equal protection principle.” (Grutter v. Bollinger,
supra, at p. 342.)11 Accordingly, 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 “to assure all citizens that the deviation from the norm of equal
treatment of all racial and ethnic groups is a temporary matter, a measure taken in
the service of the goal of equality itself.” (Croson, supra, 488 U.S. 469, 510.) In
contrast, a generally applicable rule forbidding preferences and discrimination not
required by equal protection, such as section 31, does not logically require the
same justification.12
For all of these reasons, we conclude the political structure doctrine does not
invalidate section 31.
B. The Federal Funding Exception.
The City next contends the 2003 ordinance is unaffected by section 31
because the ordinance falls within the exception set out in subdivision (e):
“Nothing in this section shall be interpreted as prohibiting action which must be
11
The high court in Grutter v. Bollinger, supra, 539 U.S. 306, 337, rejected
an equal protection challenge to a law school admissions policy that used race,
without preferential quotas, as one factor “in a highly individualized, holistic
review of each applicant‟s file . . . .” In its decision, the court noted that states
“can and should draw on the most promising aspects of . . . race-neutral
alternatives as they develop” in states such as “California . . . , where racial
preferences in admissions are prohibited by state law [e.g., section 31] . . . .” (Id.,
at p. 342.)
12
Again, section 31 does not affect preferences required by the federal equal
protection clause. (See § 31, subd. (h); see also ante, at pp. 12-13.)
20
taken to establish or maintain eligibility for any federal program, where
ineligibility would result in a loss of federal funds to the State.” (§ 31, subd. (e).)
The City, which receives federal funds for a variety of projects, argues it is
compelled to enforce the 2003 ordinance by specific federal regulations imposing
affirmative action obligations on cities that receive funds. We asked the parties to
brief the issue13 and now hold, as did the lower courts, that the City‟s argument
lacks merit.
The City invokes the federal funding exception (§ 31, subd. (e)) not as a basis
for its own motion for summary judgment but, rather, as an argument against
plaintiffs‟ motion. Accordingly, the City‟s burden is to show that a triable issue of
fact exists. (Code Civ. Proc., § 437c, subd. (c); see Aguilar v. Atlantic Richfield
Co. (2001) 25 Cal.4th 826, 849.) The superior court did not mention the federal
funding argument in its written ruling granting plaintiffs‟ motion. The Court of
Appeal, however, discussed and rejected the argument, concluding that the
relevant federal regulations do not require racial preferences and that the City has
not, in any event, made a sufficient factual showing of past discrimination to
trigger any obligation under the regulations. Of these two grounds, we find the
first dispositive and thus do not reach the second.14
13
Specifically, we asked the parties whether “an ordinance that provides
certain advantages to minority- and female-owned business enterprises with
respect to the award of city contracts fall[s] within an exception to section 31 for
actions required of a local government entity to maintain eligibility for federal
funds under the federal Civil Rights Act (42 U.S.C. § 2000d)[.]”
14
Accordingly, our analysis and disposition of this issue do not depend on
whether the City on remand proves, or fails to prove, that it has purposefully
discriminated against MBE‟s and WBE‟s. (See post, at p. 24 et seq.) We address
here only the question whether the relevant federal regulations, independently of
the federal equal protection clause (U.S. Const., 14th Amend.), require the 2003
(footnote continued on next page)
21
The City‟s argument begins with the Civil Rights Act of 1964, title VI, which
provides that “[n]o person in the United States shall, on the ground of race, color,
or national origin, be excluded from participation in, be denied the benefits of, or
be subjected to discrimination under any program or activity receiving Federal
financial assistance.” (42 U.S.C. § 2000d.) Title VI also authorizes and directs
“[e]ach Federal department and agency which is empowered to extend Federal
financial assistance to any program or activity . . . to effectuate the provisions of
section 2000d of this title with respect to such program or activity by issuing rules,
regulations, or orders of general applicability which shall be consistent with the
achievement of the objectives of the statute authorizing the financial assistance in
connection with which the action is taken.” (42 U.S.C. § 2000d-1.) Exercising
this rulemaking authority, the Environmental Protection Agency and the Secretary
of Transportation have issued regulations forbidding discrimination in the projects
they fund and requiring “affirmative action” in specified circumstances. (40
C.F.R. § 7.35(a)(7) (2010) [environmental protection];15 49 C.F.R. § 21.5(b)(7)
(2009) [transportation].16) In neither regulation, however, is the term “affirmative
(footnote continued from previous page)
ordinance. If the federal equal protection clause itself requires the 2003 ordinance,
then the City‟s claim under the federal regulations has no practical significance.
15
“In administering a program or activity receiving Federal financial
assistance in which the recipient has previously discriminated on the basis of race,
color, sex, or national origin, the recipient shall take affirmative action to provide
remedies to those who have been injured by the discrimination.” (40 C.F.R.
§ 7.35(a)(7) (2010).)
16
“This part does not prohibit the consideration of race, color, or national
origin if the purpose and effect are to remove or overcome the consequences of
practices or impediments which have restricted the availability of, or participation
in, the program or activity receiving Federal financial assistance, on the grounds of
(footnote continued on next page)
22
action” defined. (Cf. 40 C.F.R. § 7.25 (2010) [environmental protection;
definitions]; 49 C.F.R. § 21.23 (2009) [transportation; definitions].)
The City contends these regulations compelled it to adopt the 2003 ordinance
to avoid a loss of federal funding. We do not agree. Although the regulations use
the broad, undefined term “affirmative action,” no intention to require racial
preferences emerges from their plain language. The Environmental Protection
Agency‟s regulation requires a recipient of federal funds who has “previously
discriminated” to “take affirmative action to provide remedies to those who have
been injured by the discrimination.” (40 C.F.R. § 7.35(a)(7) (2010), italics
added.) In this context, the term “affirmative action” clearly refers not to race-
based remedies but, rather, to actions taken to benefit the specific victims of past
discrimination. The regulation thus cannot logically mandate an ordinance like the
City‟s, which confers preferences on bidders based on race without regard to
specific instances of past discrimination. The Secretary of Transportation‟s
regulation more broadly requires the recipients of federal funds to take
“affirmative action to ensure that no person is excluded from participation” in a
federally funded program “[e]ven in the absence of prior discriminatory practice
(footnote continued from previous page)
race, color, or national origin. Where prior discriminatory practice or usage tends,
on the grounds of race, color, or national origin to exclude individuals from
participation in, to deny them the benefits of, or to subject them to discrimination
under any program or activity to which this part applies, the applicant or recipient
must take affirmative action to remove or overcome the effects of the prior
discriminatory practice or usage. Even in the absence of prior discriminatory
practice or usage, a recipient in administering a program or activity to which this
part applies, is expected to take affirmative action to assure that no person is
excluded from participation in or denied the benefits of the program or activity on
the grounds of race, color, or national origin.” (49 C.F.R. § 21.5(b)(7) (2009).)
23
or usage . . . .” (49 C.F.R. § 21.5(b)(7) (2009).) The regulation also mentions
race-based remedies but is on this point expressly permissive, stating that it “does
not prohibit the consideration of race . . . to overcome the consequences” of past
discrimination. (Ibid., italics added.) The unmistakable import of this language is
not that race-based remedies are required, but simply that they are permitted, so
far as the Secretary is concerned, if no other law precludes them. That the
Secretary has no objection to race-based remedies does not establish the federal
compulsion required to exempt the City‟s 2003 ordinance from section 31.
For these reasons, we find no merit in the argument that the federal funding
exception (§ 31, subd. (e)) exempts the 2003 ordinance from section 31‟s general
prohibition of racial preferences. No triable issue of fact exists on this point to
preclude summary judgment for plaintiffs.
C. The Federal Compulsion Argument.
Finally, the City contends the federal equal protection clause (U.S. Const.,
14th Amend.) requires the 2003 ordinance as a remedy for the City‟s own
discrimination. Although the superior court granted summary judgment for
plaintiffs, the court did not meaningfully address the City‟s federal compulsion
argument. The Court of Appeal reversed the superior court‟s decision to this
extent and remanded the case “for the limited purpose of adjudicating this issue.”
Plaintiffs petitioned for review, and we directed the parties to brief the question.17
We hold the Court of Appeal ruled correctly and affirm its judgment remanding
for further proceedings.
17
Specifically, we asked whether “the Court of Appeal properly remand[ed]
the case to the trial court to determine in the first instance whether the ordinance
was required by the federal equal protection clause as a narrowly tailored remedial
program to remedy ongoing, pervasive discrimination in public contracting[.]”
24
Plaintiffs assert two procedural objections to remanding for further
proceedings. Both lack merit. First, plaintiffs suggest the City failed to carry its
burden in the superior court and is merely seeking a second, undeserved chance to
do so. Plaintiffs mischaracterize the procedural posture. Because the City raised
the federal compulsion theory as an argument against plaintiffs‟ motion for
summary judgment, the City‟s burden was to show that triable issues of fact exist.
(Code Civ. Proc., § 437c, subd. (c); see Aguilar v. Atlantic Richfield Co., supra, 25
Cal.4th 826, 849.) All parties have stipulated that no additional briefing or record
submissions are necessary; the City seeks only a hearing in the superior court to
determine whether it has carried its burden. Second, plaintiffs contend the City
did not properly plead its federal compulsion theory. To the extent the City was
required to plead the theory, the City did so by alleging in its answer as an
affirmative defense that plaintiff Schram‟s complaint “is barred on the ground that
the federal Constitution preempts the application of Proposition 209 [i.e., section
31] to invalidate the Ordinance.” Plaintiffs never objected in the lower courts that
the City‟s pleading was insufficient to preserve the issue. Instead, plaintiffs
responded on the merits, thus waiving the objection. (Neverkovec v. Fredericks
(1999) 74 Cal.App.4th 337, 346, fn. 5.)
Certainly we have the power to decide the federal compulsion issue in the
first instance. We owe the superior court no deference in reviewing its ruling on a
motion for summary judgment; the standard of review is de novo. (Johnson v.
City of Loma Linda, supra, 24 Cal.4th 61, 67-68.) Furthermore, “[i]t is axiomatic
that we review the trial court‟s rulings and not its reasoning.” (People v. Mason
(1991) 52 Cal.3d 909, 944.) Thus, a reviewing court may affirm a trial court‟s
decision granting summary judgment for an erroneous reason. (D’Amico v. Board
of Medical Examiners (1974) 11 Cal.3d 1, 18-19.) In this case, however, we see
no detriment and some benefit in affording the City the hearing in the superior
25
court to which all litigants are entitled as a matter of course. (Code Civ. Proc.,
§ 437c, subd. (a).) Unlike the political structure and federal funding issues, which
we may resolve as questions of law, the federal compulsion claim is largely factual
and depends on the evidence supporting the Board‟s decision to adopt race-
conscious legislation. When the government seeks to defend actions based on race
as remedial, there must be “ „a strong basis in evidence for its conclusion that
remedial action was necessary.‟ ” (Croson, supra, 488 U.S. 469, 500; quoting
Wygant v. Jackson Board of Education, supra, 476 U.S. 267, 277 (plur. opn. of
Powell, J.).) We expect the superior court‟s assessment of the record will assist
the reviewing courts, if necessary, in determining whether a strong basis in the
evidence does in fact support the City‟s decision to adopt the 2003 ordinance.18
We offer the following comments to assist the superior court in resolving the
federal compulsion issue on remand: While the parties have not brought to our
18
One remaining procedural issue lies uniquely within the superior court‟s
knowledge. The parties disagree on whether or not the City‟s responses to
plaintiff Coral‟s requests for admission are properly part of the record for purposes
of summary judgment. The answer depends on how one interprets the parties‟
stipulation concerning the record — a stipulation solicited and approved by the
superior court. (See ante, at p. 10.)
The City‟s admissions have possible significance, as they appear to
concede, subject to certain objections and qualifications: (1) that since at least
April 2, 1984, it has not been a policy of the City to discriminate against MBE‟s or
WBE‟s; (2) that the City cannot identify a specific contract on which a prime
contractor discriminated against an MBE or WBE subcontractor after November
5, 1996, where the MBE or WBE was the lowest responsive bidder; and (3) that
the City has not identified any specific contract-awarding authority which
discriminated against an MBE or WBE in the awarding of one of the City‟s public
contracts after November 5, 1996. The superior court on remand should determine
whether the City‟s admissions are properly part of the record for summary
judgment, as defined by the parties‟ stipulation, and, if so, the admissions‟ bearing
on the question of whether triable issues of fact exist.
26
attention any decision ordering a governmental entity to adopt race-conscious
public contracting policies under the compulsion of the federal equal protection
clause, the relevant decisions hold open the possibility that race-conscious
measures might be required as a remedy for purposeful discrimination in public
contracting. (Hi-Voltage, supra, 24 Cal.4th 537, 568 [“Where the state or a
political subdivision has intentionally discriminated, use of a race-conscious or
race-specific remedy necessarily follows as the only, or at least the most likely,
means of rectifying the resulting injury.” ]; see also Croson, supra, 488 U.S. 469,
509 (plur. opn. of O‟Connor, J.) [“In the extreme case, some form of narrowly
tailored racial preferences might be necessary to break down patterns of deliberate
exclusion.”].)
All racial classifications, even those contained in ostensibly remedial laws,
must survive strict scrutiny. (Parents Involved, supra, 551 U.S. 701, 720;
Adarand, supra, 515 U.S. 200, 226-227.) This is because “ „ “racial classifications
are simply too pernicious to permit any but the most exact connection between
justification and classification.” ‟ ” (Parents Involved, at p. 720, quoting Gratz v.
Bollinger (2003) 539 U.S. 244, 270.) Under the strict scrutiny test, “such
classifications are constitutional only if they are narrowly tailored measures that
further compelling governmental interests.” (Adarand, at p. 227.) The only
possibly compelling governmental interest implicated by the facts of this case is
the interest in providing a remedy for purposeful discrimination. (See Croson,
supra, 488 U.S. 469, 500; see also id., at p. 509 (plur. opn. of O‟Connor, J.); Hi-
Voltage, supra, 24 Cal.4th 537, 568.)19 In any event, proof of discriminatory
19
In contrast, outright racial balancing is “patently unconstitutional” and not a
compelling state interest that can properly justify racial classifications. (Grutter v.
(footnote continued on next page)
27
purpose or intent is always required to show a violation of the federal equal
protection clause (Arlington Heights v. Metropolitan Housing Corp. (1977) 429
U.S. 252, 265), and remedial action must actually be necessary (Croson, at
p. 500).
Accordingly, to defeat plaintiffs‟ motion for summary judgment, the City
must show that triable issues of fact exist on each of the factual predicates for its
federal compulsion claim, namely: (1) that the City has purposefully or
intentionally discriminated against MBE‟s and WBE‟s; (2) that the purpose of the
City‟s 2003 ordinance is to provide a remedy for such discrimination; (3) that the
ordinance is narrowly tailored to achieve that purpose; and (4) that a race- and
gender-conscious remedy is necessary as the only, or at least the most likely,
means of rectifying the resulting injury. If any of these points can be resolved as a
matter of law in plaintiffs‟ favor, it follows that the City cannot establish federal
compulsion and that plaintiffs are entitled to summary judgment.20
(footnote continued from previous page)
Bollinger, supra, 539 U.S. 306, 330; see also, e.g., Parents Involved, supra, 551
U.S. 701, 730; cf. Croson, supra, 488 U.S. 469, 507-508.)
20
We note the Board‟s legislative findings on these points do not bind the
court on remand. Although “[t]he factfinding process of legislative bodies is
generally entitled to a presumption of regularity and deferential review by the
judiciary” (Croson, supra, 488 U.S. 469, 500), “[r]acial classifications are suspect,
and that means that simple legislative assurances of good intention cannot suffice”
(ibid.). “The history of racial classifications in this country suggests that blind
judicial deference to legislative or executive pronouncements of necessity has no
place in equal protection analysis.” (Id., at p. 501.)
A legislative body cannot preclude searching judicial review of
presumptively unconstitutional racial classifications with findings to the effect that
such classifications are necessary, however much supporting evidence is claimed
to exist. Certainly a legislative body must have a strong basis in evidence for
determining that race-conscious remedial action is necessary (see Croson, supra,
(footnote continued on next page)
28
On remand, the superior court is to consider the federal compulsion issue
based on the existing record in accordance with the “Stipulation of All Counsel
That No Additional Briefing or Record Submissions Are Required for
Consolidation” (July 9, 2004).
III. DISPOSITION
The judgment of the Court of Appeal is affirmed.
WERDEGAR, J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
BAXTER, J.
CHIN, J.
CORRIGAN, J.
(footnote continued from previous page)
488 U.S. 469, 500), and “evidence which would support a judicial finding of
intentional discrimination may suffice also to justify remedial legislative action,”
even before a court has ordered it (id., at p. 519 (conc. opn. of Kennedy, J.)). (Cf.
conc. & dis. opn. of Moreno, J., post, at pp. 41-42.) But to say that a legislative
body can and must act on appropriate evidence does not mean that legislative
findings constrain judicial review. The high court‟s decision in Croson is
precisely to the contrary, and our decisions are in accord: “ „ “[T]he deference
afforded to legislative findings does „not foreclose [a court‟s] independent
judgment on the facts bearing on an issue of constitutional law.‟ ” ‟ ” (American
Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 350, quoting
Professional Engineers v. Department of Tranportation (1997) 15 Cal.4th 543,
569; see also Spiritual Psychic Science Church v. City of Azusa (1985) 39 Cal.3d
501, 514.)
29
CONCURRING OPINION BY CORRIGAN, J.
I concur fully in the judgment affirming the Court of Appeal‟s decision. I
write separately to set out an alternative ground for distinguishing the “political
structure” cases, particularly Washington v. Seattle School Dist. No. 1 (1982) 458
U.S. 457 (Seattle), where the high court gave its broadest explanation of that equal
protection doctrine. As the majority opinion explains, the Seattle court held that a
statewide initiative measure prohibiting busing for the purpose of school
integration violated the equal protection clause by singling out this racial issue and
removing it from local control, “requir[ing] those championing school integration
to surmount a considerably higher hurdle than persons seeking comparable
legislative action.” (Seattle, at p. 474; see maj. opn., ante, at p. 15.)
Here, the City and County of San Francisco (City) contends that article I,
section 31 of the California Constitution (section 31) similarly burdens minority
interests, by imposing a statewide ban on racial or gender preferences in public
contracting. The majority opinion reasons that the busing program at issue in
Seattle was understood by the court in terms of equal educational opportunity, not
racial preferences. Therefore, the majority concludes, Seattle‟s holding does not
extend to racial preferences, which are presumptively unconstitutional under
subsequent United States Supreme Court decisions. (Maj. opn., ante, at pp. 17-
19.)
1
I am not sure this distinction goes far enough. Affirmative action programs
always purport to ensure equal opportunity. The City may fairly claim that its
contracting ordinance is meant to provide minority businesses with equal access to
City contracts. (See maj. opn., ante, at pp. 6-9.) Conceivably, it could rewrite the
ordinance to avoid any mention of preferences, yet awards of public contracts to
minority businesses in the name of equal opportunity would be no less
burdensome to other businesses that lost contracts as a result.1 Whether a
government benefit is awarded on the basis of a “preference” or a requirement of
“equal treatment” is largely a matter of semantics.
I am, however, convinced that Seattle does not apply in this case for
additional reasons. The Seattle court made it plain that it was most concerned
about the anti-busing initiative‟s narrow focus on the racial aspect of school
assignments:
“[W]hen the political process or the decisionmaking mechanism used to
address racially conscious legislation — and only such legislation — is singled out
for peculiar and disadvantageous treatment, the governmental action plainly „rests
on “distinctions based on race.” ‟ [Fn. omitted.] James v. Valtierra, 402 U.S., at
141, quoting Hunter v. Erickson, 393 U.S., at 391. And when the State‟s
allocation of power places unusual burdens on the ability of racial groups to enact
legislation specifically designed to overcome the „special condition‟ of prejudice,
the governmental action seriously „curtail[s] the operation of those political
processes ordinarily to be relied upon to protect minorities.‟ United States v.
1
As the high court has observed in the equal protection context, “[t]he
principle that racial balancing is not permitted is one of substance, not semantics.”
(Parents Involved in Community Schools v. Seattle School Dist. No. 1 (2007) 551
U.S. 701, 732 (Parents Involved).) Surely the same reasoning applies under
section 31.
2
Carolene Products Co., 304 U.S. 144, 153, n. 4 (1938). In a most direct sense,
this implicates the judiciary‟s special role in safeguarding the interests of those
groups that are „relegated to such a position of political powerlessness as to
command extraordinary protection from the majoritarian political process.‟ San
Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 28 (1973).” (Seattle,
supra, 458 U.S. at pp. 485-486, italics omitted; see also id. at p. 474 [“The
initiative removes the authority to address a racial problem — and only a racial
problem — from the existing decisionmaking body, in such a way as to burden
minority interests.”].)
Section 31 does not implicate this concern. It does not single out racial
issues or racially oriented legislation for special treatment. It applies broadly to
discrimination or preferential treatment “on the basis of race, sex, color, ethnicity,
or national origin.” (§ 31.) The inclusion of gender among the affected groups is
particularly important, because it significantly broadens the application of the
measure. The voters did not focus on a politically powerless racial minority,
making it uniquely difficult for that group to achieve beneficial legislation. To the
contrary, they passed a sweeping reform abolishing preferential treatment for a
range of groups that includes everyone in the state, in various ways. Both the
Ninth Circuit Court of Appeals, when it reviewed the constitutionality of section
31, and the Sixth Circuit, when it passed on the parallel Michigan measure, relied
in part on such considerations to distinguish Seattle. (Coalition for Economic
Equity v. Wilson (9th Cir. 1997) 122 F.3d 692, 707 (Wilson); Coalition to Defend
Affirmative Action v. Granholm (6th Cir. 2006) 473 F.3d 237, 250-251.)
Section 31 is also quite different from the narrow anti-busing measure
struck down in Seattle because it does not take aim at a particular government
activity. It applies generally to a wide range of functions, barring discrimination
or preferences in “public employment, public education, [and] public contracting.”
3
(§ 31.) As the Seattle court noted, “[w]hen political institutions are more
generally restructured . . . „[t]he very breadth of [the] scheme . . . negates any
suggestion‟ of improper purpose.” 2 (Seattle, supra, 458 U.S. at p. 486, fn. 30.)
Section 31 was a sea change in state policy, of a kind not present in Seattle or any
other “political structure” case. For the foregoing reasons, I agree with the
majority that the “political structure doctrine” does not invalidate section 31.
As alluded to in the majority opinion, the equal protection jurisprudence of
the United States Supreme Court has undergone a change similar in scale to the
reform enacted by section 31. Where the Seattle court once carefully guarded the
prerogative of school districts to pursue desegregation programs, the Parents
Involved court recently held that such programs themselves employ presumptively
unconstitutional racial classifications and are subject to strict judicial scrutiny.
The court has broadly called for a “logical end point” to “all governmental use of
race,” and approvingly referred to section 31 as a step in that direction. (Grutter v.
Bollinger (2003) 539 U.S. 306, 342; maj. opn., ante, pp. 19-20.) The various
opinions issued by this court in this case reflect the difficulty of squaring the
“political structure doctrine” with modern equal protection jurisprudence. Like
2
The quotation in this passage from Seattle was taken from a concurring
opinion in Walz v. Tax Commission (1970) 397 U.S. 664, 689, a case involving tax
exemptions for religious institutions. That opinion also states: “Government may
properly include religious institutions among the variety of private, nonprofit
groups that receive tax exemptions, for each group contributes to the diversity of
association, viewpoint, and enterprise essential to a vigorous, pluralistic society.
[Citation.] To this end, New York extends its exemptions not only to religious and
social service organizations but also to scientific, literary, bar, library, patriotic,
and historical groups, and generally to institutions „organized exclusively for the
moral or mental improvement of men and women.‟ ” (Ibid. (conc. opn. of
Brennan, J.).)
Although the context is different, section 31 also extends its reach to a
variety of activities and groups.
4
the Wilson court, we have been “perplexed” by the persistence of this
anachronistic feature of federal constitutional law. (Wilson, supra, 122 F.3d at p.
704; see also id. at p. 705, fn. 13 [noting “seemingly irreconcilable Supreme Court
precedent”]; Coalition to Defend Affirmative Action v. Regents of Univ. of Mich.
(E.D. Mich. 2008) 592 F.Supp.2d 948, 951 [noting “unevenness” created by
Seattle].)3
It would be helpful for the United States Supreme Court to clarify matters
by directly addressing the continued viability of the “political structure doctrine,”
in an appropriate case. The broad statements in Seattle casting suspicion on laws
that may be characterized as “special burdens on the ability of minority groups to
achieve beneficial legislation” (Seattle, supra, 458 U.S. at p. 467), or as attempts
to “make[] the enactment of racially beneficial legislation difficult” (id. at p. 483),
lend themselves to arguments distinctly at odds with the high court‟s own
approach to racial classifications in such later cases as Parents Involved. Justice
Moreno, of course, is correct when he points out that only the high court can
ultimately resolve this tension. (See dis. opn., post, at pp. 38-39.)
CORRIGAN, J.
3
The high court itself has avoided employing the doctrine, even when its
applicability was plain. (Romer v. Evans (1996) 517 U.S. 620, 625-626; see Evans
v. Romer (Colo. 1993) 854 P.2d 1270, 1279-1282.)
5
CONCURRING AND DISSENTING OPINION BY MORENO, J.
California voters passed Proposition 209 in 1996, adding section 31 to
article I of the state Constitution (section 31). The provision forbids public entities
from discriminating against, “or grant[ing] preferential treatment to, any
individual or group on the basis of race, sex, color, ethnicity, or national origin in
the operation of public employment, public education, or public contracting.”
(§ 31, subd. (a), italics added.) This court later construed section 31 to ban not
only preferences already prohibited by the federal equal protection clause (U.S.
Const., 14th Amend., § 1), but also race- and sex-conscious remedial measures that
the United States Constitution would otherwise permit. (Hi-Voltage Wire Works,
Inc. v. City of San Jose (2000) 24 Cal.4th 537, 567 (Hi-Voltage).) We are now asked
to resolve whether section 31 violates the federal Constitution.1
At the outset, I note several uncontroversial facts. Despite language
forbidding discrimination (which added nothing to existing law), there can be little
doubt Proposition 209 was enacted because of its effect on race- and sex-
conscious preferences (and, given the ballot materials, primarily the former). Nor
is there any serious uncertainty that the race- and sex-conscious preferences
1
Unless otherwise noted, all subsequent references to a Constitution or an
equal protection clause are to the federal Constitution and the federal equal
protection clause.
1
eliminated by section 31 primarily benefitted racial minorities and women and
were so intended. Finally, it is uncontroverted that Proposition 209 did more than
merely repeal existing programs; by amending the state Constitution, Proposition
209 requires those who would seek new race- and sex-conscious preferential
programs to obtain the passage of another statewide initiative. By contrast, those
seeking preferences on all other bases can resort to the usual, less burdensome,
political process.2 These facts, I conclude, require section 31 be invalidated as
unconstitutional under the United States Supreme Court‟s decisions in Hunter v.
Erickson (1969) 393 U.S. 385 (Hunter) and Washington v. Seattle School District
No. 1 (1982) 458 U.S. 457 (Seattle).
In Hunter and Seattle, the high court established what has been called the
political structure doctrine, a less familiar variant of equal protection analysis. In
sum, the doctrine (and thus, the Constitution) is violated when a facially neutral
law singles out a racial issue for special treatment and also alters the political
process, entrenching the result and imposing unique structural burdens on
minorities‟ future ability to obtain beneficial legislation. (Seattle, supra, 458 U.S.
at pp. 470-474, 479-480; Hunter, supra, 393 U.S. at pp. 390-391.) That is, I
submit, precisely what section 31 accomplishes. The arguments offered to the
contrary are thin gruel. (Maj. opn., ante, at pp. 15-20; conc. opn. of Corrigan, J.,
ante, at pp. 2-4.) Whatever the concerns about the ongoing vitality of the political
structure doctrine (conc. opn. of Corrigan, J., ante, at pp. 4-5), unless the United
States Supreme Court decides to overrule its decisions, our obligation is to follow
2
One more fact bears emphasizing: the only race-conscious programs
uniquely affected by section 31 are those that could otherwise withstand strict
scrutiny; that is, those narrowly tailored to further a compelling governmental
interest, such as providing a remedy for purposeful discrimination. Programs
unable to survive such scrutiny were already impermissible without section 31.
2
its clearly applicable and controlling precedent. (Rodriguez de Quizas v.
Shearson/American Express, Inc. (1989) 490 U.S. 477, 484.) Because the
majority fails to do so, I must dissent.3
I.
As the majority relates the facts and history of this case, there is no need to
repeat them. However, the extent of the City and County of San Francisco‟s
(City) efforts to investigate whether discrimination was a problem in its public
contracting and, if so, whether there was a basis for a legislative remedy bears
brief mention.
Prior to enacting the 1989 version of the City‟s Minority/Women/Local
Business Utilization Ordinance (Ordinance), the City “received, among other
information, testimony from 42 witnesses, and written submittals from 127
minority, women, local, and other business representatives. Subsequently . . . the
City held an additional ten public hearings, commissioned two statistical studies,
and sought written submissions from the public.” (Associated Gen. Contractors of
Cal. v. Coalition (9th Cir. 1991) 950 F.2d 1401, 1404.)
After the 1989 Ordinance expired, the City‟s Board of Supervisors and
Human Rights Commission held an additional 14 public hearings, heard live
testimony from 254 witnesses, videotaped testimony from numerous other
witnesses, and considered additional statistical disparity studies and other
documentary evidence pertinent to alleged discrimination and bidding
irregularities. Minority contractors observed that, as compared with nonminority
contractors, City inspectors imposed more onerous requirements on them,
3
As discussed below, I generally join the majority‟s analysis of the City‟s
federal compulsion claim and concur with its decision to remand for further
proceedings. I dissent from the holding as to the City‟s federal funding claim.
3
scrutinized their work more closely and treated them more harshly if they made
mistakes. One minority contractor spoke of being harassed and subject to racist
and derogatory remarks from City inspectors. Another complained of being
subjected to more rigorous vetting despite his extensive qualifications and
experience. Out of this process emerged the 1998 Ordinance.
The 1998 Ordinance expired in 2003. The City conducted further
investigations, including a disparity analysis and a Human Rights Commission
report containing additional examples of continuing discrimination in public
contracting. The City also conducted additional hearings at which 134 individuals
testified. Minority contractors testified of ongoing discrimination in the
contracting process, and the Board of Supervisors heard evidence that prime
contractors tried to circumvent compliance with the Ordinance. The Board of
Supervisors made extensive legislative findings, including that the small
percentage of City contracts going to minority- and women-owned businesses was
due to discrimination by the City and discrimination in the private sector, that the
City was actively discriminating against women and minority groups in its
contracting and passively participating in private sector discrimination, that the
City‟s contracting practices were in violation of federal law, and that the
Ordinance was required to remedy the discrimination against minority- and
women-owned businesses. The City thereafter enacted the 2003 Ordinance, the
version challenged by plaintiffs in this case.
II.
A. The Political Structure Doctrine
The City contends section 31 violates the political structure doctrine, the
contours of which are set out in a trilogy of United States Supreme Court cases:
Hunter, supra, 393 U.S. 385, and Seattle, supra, 458 U.S. 457, which established
the basic tenets of the doctrine, and Crawford v. Los Angeles Bd. of Education
4
(1982) 458 U.S. 527 (Crawford), which described the doctrine‟s outer limits. I
begin by discussing each case in turn.
1. Hunter
In 1964, the city council in Akron, Ohio, enacted a fair housing ordinance
prohibiting discrimination on the basis “of race, color, religion, ancestry or
national origin.” (Hunter, supra, 393 U.S. at p. 386.) The ordinance established a
commission in the mayor‟s office to enforce the measure‟s provisions through
conciliation or persuasion if possible, and court order if necessary. (Ibid.) Hunter,
an African-American woman, filed a complaint with the commission alleging a
real estate agent had come to show her a list of houses for sale but, upon meeting
Hunter, said she could not show Hunter the homes “ „because all of the owners
had specified they did not wish their houses shown to negroes.‟ ” (Id. at p. 387.)
Hunter was told the ordinance provided no remedy because the city charter
had been amended in a citywide election to provide that any ordinance enacted by
the city council regulating real estate transactions “ „on the basis of race, color,
religion, national origin or ancestry must first be approved by a majority of the
electors voting on the question at a regular or general election before said
ordinance shall be effective. Any such ordinance in effect at the time of the
adoption of this section shall cease to be effective until approved by the electors as
provided herein.‟ [Citation.]” (Hunter, supra, 393 U.S. at p. 387.) The proposed
charter amendment had been placed on the ballot after more than 10 percent of
Akron‟s voters had signed a petition, and the initiative was passed by a majority of
voters. (Ibid.) Hunter sought a writ of mandamus in state court to enforce the
ordinance, but the trial court ultimately concluded it had been rendered ineffective
by the amended city charter, and the Supreme Court of Ohio affirmed. (Id. at
pp. 387-388.) The high court reversed.
5
While suggesting the mere repeal of an ordinance would not violate the
Fourteenth Amendment (Hunter, supra, 393 U.S. at p. 390, fn. 5), the Supreme
Court noted the charter amendment went further by “not only suspend[ing] the
operation of the existing ordinance forbidding housing discrimination, but also
requir[ing] the approval of the electors before any future ordinance could take
effect.” (Id. at p. 390, italics added.) In doing so, the charter amendment “drew a
distinction between those groups who sought the law‟s protection against racial,
religious, or ancestral discriminations in the sale and rental of real estate and those
who sought to regulate real property transactions in the pursuit of other ends.”
(Ibid.) Under the amended city charter, it became substantially more difficult for
religious and racial minorities to secure the enactment of ordinances forbidding
housing discrimination than for those seeking other ordinances. (Ibid.)
Ordinances not subject to the charter amendment would become effective
30 days after passage by the city council (or immediately, if passed as an
emergency measure) and would be subject to referendum only if 10 percent of the
voters so requested by signing a petition. (Hunter, supra, 393 U.S. at p. 390.) By
contrast, the city council‟s approval would not be enough for those seeking
ordinances to forbid racial and religious housing discrimination. (Ibid.) Those
seeking ordinances to prevent housing discrimination would have to overcome the
unique hurdle of obtaining the approval of a majority of voters in an election
before such a city council-approved ordinance could be effective. (Ibid.)
That the charter amendment was facially neutral was of no moment, the
high court explained. Even though it did not distinguish between various religious
and racial groups, the amended charter “disadvantages those who would benefit
from laws barring racial, religious, or ancestral discriminations as against those
6
who would bar other discriminations or who would otherwise regulate the real
estate market in their favor.” (Hunter, supra, 393 U.S. at pp. 390-391.)4
Moreover, the Supreme Court recognized that, “although the law on its face treats
Negro and white, Jew and gentile in identical manner, the reality is that the law’s
impact falls on the minority.” (Id. at p. 391, italics added.) Placing “special
burdens on racial minorities within the governmental process . . . is no more
permissible than denying them the vote, on an equal basis with others. (Cf.
Gomillion v. Lightfoot (1960) 364 U.S. 339; Reynolds v. Sims (1964) 377 U.S.
533; Avery v. Midland County (1968) 390 U.S. 474.)” (Hunter, at p. 391.) The
high court‟s citation to its voting rights decisions (and specifically its vote dilution
decisions) is enlightening, as it underscores that the doctrine‟s central focus is not
on the attainment of particular legislative outcomes, but instead on ensuring
minorities‟ meaningful and equal access to the political process.
Because the charter amendment singled out an issue of particular import to
racial minorities and effectively entrenched the result by imposing unique hurdles
in front of minorities‟ future efforts to achieve beneficial legislation, the court
concluded it constituted a racial classification and applied strict scrutiny. (Hunter,
supra, 393 U.S. at p. 392.) It ultimately found the asserted justifications for the
amendment insufficient. (Ibid.) Of particular note, the court emphasized that “the
implementation of this change through popular referendum [does not] immunize
it. [Citation.] The sovereignty of the people is itself subject to those constitutional
limitations which have been duly adopted and remain unrepealed.” (Ibid.) Having
4
The high court pointed out, for example, that the charter amendment did not
affect “housing discrimination on sexual or political grounds, or against those with
children or dogs, nor [did] it affect tenants seeking more heat or better
maintenance from landlords, nor those seeking rent control, urban renewal, public
housing, or new building codes.” (Hunter, supra, 393 U.S. at p. 391.)
7
chosen a process for enacting legislation, the high court concluded, “the State may
no more disadvantage any particular group by making it more difficult to enact
legislation in its behalf than it may dilute any person‟s vote or give any group a
smaller representation than other of comparable size. [Citations.]” (Id. at p. 393,
italics added.)
2. Seattle
In 1977, Seattle School District No. 1 enacted a resolution to combat de
facto racial segregation in the school system resulting from the housing patterns in
Seattle, Washington. (Seattle, supra, 458 U.S. at p. 459.) The school district
initially employed race-neutral voluntary measures; the steps taken, however,
actually led to increased racial imbalance in the schools. (Id. at p. 461.) The
school district ultimately determined “that mandatory reassignment of students
was necessary if racial isolation in its schools was to be eliminated” and thus
implemented a program involving the extensive use of busing and mandatory
reassignments in the elementary schools (the Plan). (Ibid.)
After a failed attempt to enjoin the implementation of the Plan, Seattle
residents who opposed its remedial measures drafted a statewide ballot measure
“designed to terminate the use of mandatory busing for purposes of racial
integration.” (Seattle, supra, 458 U.S. at p. 462.) The proposed initiative, which
ultimately passed with 66 percent of the vote, prohibited school boards from
“ „requir[ing] any student to attend a school other than the school which is
geographically nearest or next nearest the student‟s place of residence . . . and
which offers the course of study pursued by such student.‟ ” (Id. at pp. 462-463.)
While the initiative did not mention race or, “busing for racial purposes,” it
contained a number of exceptions to its ban (id. at p. 463), such that school
districts were permitted to “bus their students „for most, if not all,‟ of the
8
nonintegrative purposes required by their educational policies. [Citation.]” (Id. at
p. 471.) In light of these exceptions, the Supreme Court observed, it was clear that
the measure was aimed solely at eliminating the remedy of “desegregative busing
in general, and . . . the . . . Plan in particular.” (Id. at p. 463.)5
Three school districts sued the State of Washington in federal court,
arguing the initiative violated the equal protection clause. (Seattle, supra, 458
U.S. at p. 464.) The district court concluded the initiative constituted an
impermissible racial classification in violation of the political structure doctrine
because it forbade busing from being used as a remedy for racial segregation while
permitting its use for all nonracial reasons. (Id. at p. 465.) The Ninth Circuit
affirmed, and the state and state officers appealed. (Id. at p. 466.)
The high court began by noting the equal protection clause guarantees
racial minorities “the right to full participation in the political life of the
community.” (Seattle, supra, 458 U.S. at p. 467.) To that end, the Fourteenth
Amendment not only protects minorities‟ right to vote and to enter into the
political process in a reliable and meaningful manner, but also “reaches „a political
structure that treats all individuals as equals,‟ [citation], yet more subtly distorts
governmental processes in such a way as to place special burdens on the ability of
minority groups to achieve beneficial legislation.” (Ibid., italics added.) This
“political structure” principle, the high court noted, was expressed and applied in
Hunter and Lee v. Nyquist (W.D.N.Y 1970) 318 F.Supp. 710, summarily affd.
5
Indeed, while the federal district court found that the initiative‟s proponents
had not “address[ed] „its appeals to the racial biases of the voters‟ [citation]”
(Seattle, supra, 458 U.S. at p. 463), it found that they had communicated that the
measure‟s passage “would result in „no loss of school district flexibility other than
in busing for desegregation purposes,‟ [citation]” and they “focused almost
exclusively on the wisdom of „forced busing‟ for integration. [Citation.]” (Ibid.)
9
(1971) 402 U.S. 935.6 (Seattle, at pp. 467-469.) From these cases (as well as
from Justice Harlan‟s concurring opinion in Hunter, supra, 393 U.S. at pages 393-
396), the Seattle court drew “a simple but central principle” (Seattle, at p. 469):
“[L]aws structuring political institutions or allocating political power
according to „neutral principles‟ — such as the executive veto, or the typically
burdensome requirements for amending state constitutions — are not subject to
equal protection attack, though they may „make it more difficult for minorities to
achieve favorable legislation.‟ ([Hunter, supra,] 393 U.S. at [p.] 394 [(conc. opn.
of Harlan, J.)].) Because such laws make it more difficult for every group in the
community to enact comparable laws, they „[provide] a just framework within
which the diverse political groups in our society may fairly compete.‟ (Id. at
p. 393.) Thus, the political majority may generally restructure the political process
to place obstacles in the path of everyone seeking to secure the benefits of
governmental action. But a different analysis is required when the State allocates
governmental power nonneutrally, by explicitly using the racial nature of a
decision to determine the decisionmaking process.” (Seattle, supra, 458 U.S. at
p. 470.)
Applying the political structure doctrine to the ballot measure, the Supreme
Court concluded that, rather than attempting “ „to allocate governmental power on
the basis of any general principle‟ [citation]” (Seattle, supra, 458 U.S. at p. 470), it
6
In Lee v. Nyquist, supra, 318 F. Supp. at page 712, state education officials
directed the City of Buffalo, which had an appointed school board, to implement
remedies to combat de facto segregation. In response, the New York Legislature
enacted a statute barring state officials and appointed (but not elected) school
boards from assigning students to schools on the basis of race, while leaving the
school boards and state officials with student assignment authority for all other
reasons. (Id. at pp. 712, 719.) The three-judge Lee court struck down the statute,
applying the political structure doctrine. (Id. at pp. 718-719.)
10
impermissibly used “the racial nature of an issue to define the governmental
decisionmaking structure, and thus impose[d] substantial and unique burdens on
racial minorities.” (Ibid.)
In so holding, the court conducted a two-part inquiry. It first inquired
whether the initiative, despite its facial neutrality, singled out a racial issue for
special treatment. (Seattle, supra, 458 U.S. at p. 471.) While the initiative
nowhere mentioned “race” or “integration,” the court had little difficulty finding it
was nonetheless “effectively drawn for racial purposes.” (Ibid.)7 As evidence, the
court pointed to the fact that the exceptions in the initiative meant that only
desegregative busing was prohibited, which was consistent with the proponents‟
statements during the campaign. (Ibid.) “It is beyond reasonable dispute, then,
that the initiative was enacted „ “because of,” not merely “in spite of,” its adverse
effects upon‟ busing for integration. [Citation.]” (Ibid.)
In addition, the court noted that busing for integration is a racial issue that,
“at bottom inures primarily to the benefit of the minority and is designed for that
purpose.” (Seattle, supra, 458 U.S. at pp. 471-472, italics added.) While so
concluding, the court acknowledged that racial minorities, as well as those in the
majority, could be counted among both the proponents and opponents of the ballot
measure, just as both racial minority and majority members benefited from diverse
schools. (Id. at p. 472.) “But neither of these factors serves to distinguish Hunter,
for we may fairly assume that members of the racial majority both favored and
benefited from Akron‟s fair housing ordinance. [Citations.]” (Ibid.) “[I]t is
7
“Racial purpose” does not refer to the drafters‟ (or voters‟) invidious intent.
(Seattle, supra, 458 U.S. at pp. 484-486.) Rather, a racial purpose may be found
when, among other things, a law is enacted because of, rather than in spite of, its
effect on the racial issue. (Id. at p. 471.)
11
enough that minorities may consider busing for integration to be ‘legislation that
is in their interest.’ [Citation.] Given the racial focus of [the initiative], this
suffices to trigger application of the Hunter doctrine.” (Id. at p. 474, italics
added.)
For the second part of its inquiry, the high court considered whether “the
practical effect of [the ballot measure] is to work a reallocation of power of the
kind condemned in Hunter.” (Seattle, supra, 458 U.S. at p. 474, italics added.) In
concluding the initiative did so, the court noted that the ballot measure “removes
the authority to address a racial problem — and only a racial problem — from the
existing decisionmaking body, in such a way as to burden minority interests.”
(Ibid.) After passage of the measure, those seeking to address school segregation
had to seek relief from the state legislature or from the statewide electorate; by
comparison, those wishing to effect any other nonracial school reassignment or
educational policy needed only petition their local school board. (Ibid.) Thus, the
changed political structure “expressly requires those championing school
integration to surmount a considerably higher hurdle than persons seeking
comparable legislative action. As in Hunter, then, the community‟s political
mechanisms are modified to place effective decisionmaking authority over a racial
issue at a different level of government.” (Seattle, at p. 474.)8
In concluding the initiative had worked an impermissibly nonneutral
alteration of the political structure, the court considered, and rejected, arguments
raised by Justice Powell‟s dissent and the defendants. Justice Powell argued this
8
Under Washington‟s Constitution, voters could propose initiatives (Seattle,
supra, 458 U.S. at p. 462, fn. 4 [citing Wn. Const., art. II, § 1]) and, if a measure
passed, it could not be repealed by the legislature for two years (although it could
be amended within two years by a vote of two-thirds of each house of the
legislature). (Seattle, supra, at p. 462, fn. 4 [citing Wn. Const., art. II, § 41].)
12
case was unlike Hunter because “the political system [of Washington] has not
been redrawn or altered.” (Seattle, supra, 458 U.S. at p. 498 (dis. opn. of Powell,
J.).) The majority dismissed this distinction as facile, pointing out “[t]he evil
condemned by the Hunter Court was not the particular political obstacle of
mandatory referenda imposed by the Akron charter amendment; it was, rather, the
comparative structural burden placed on the political achievement of minority
interests.” (Id. at p. 474, fn. 17, italics added.)9 In both cases, the power to enact
racial legislation was relocated to a more distant level, the citywide electorate in
Hunter and the statewide electorate or the state legislature in Seattle. (Ibid.)10
The court also rejected the defendants‟ contention that the ballot measure
merely constituted a permissible intervention by the state in its own school system.
(Seattle, supra, 458 U.S. at pp. 475-476.) While it acknowledged that Washington
had plenary authority over its education system, the court pointed out that “[t]he
issue here . . . is not whether Washington has the authority to intervene in the
affairs of local school boards; it is, rather, whether the State has exercised that
authority in a manner consistent with the Equal Protection Clause.” (Id. at p. 476.)
9
The majority continued, explaining that Hunter would have been virtually
identical to Seattle had the charter amendment simply precluded the city council
from passing any fair housing ordinance. (Seattle, supra, 458 U.S. at p. 474,
fn. 17.) “Surely, however, Hunter would not have come out the other way had the
charter amendment made no provision for the passage of fair housing legislation,
instead of subjecting such legislation to ratification by referendum.” (Ibid.)
10
The majority also rejected Justice Powell‟s claim that Seattle was different
because proponents of integrated schools remained free to use Washington‟s
initiative system to achieve their goals. (Seattle, supra, 458 U.S. at pp. 474,
fn. 17.) The majority pointed out the same was true in Hunter; “[i]t surely is an
excessively formal exercise, then, to argue that the procedural revisions in Hunter
imposed special burdens on minorities, but that the selective allocation of
decisionmaking authority worked by [the ballot measure] does not erect
comparable political obstacles.” (Ibid.)
13
Having previously chosen to vest decisionmaking authority of the type at issue
here in local school boards (id. at pp. 477-480), the ballot measure “worked a
major reordering of the State‟s educational decisionmaking process. . . . After the
passage of the ballot measure, authority over all but one of those areas remained in
the hands of the local board. By placing power over desegregative busing at the
state level, then, [the initiative] plainly „differentiates between the treatment of
problems involving racial matters and that afforded other problems in the same
area.‟ [Citation.]” (Id. at pp. 479-480, italics added.)11
Moreover, the court noted, while voters are free to merely repeal unpopular
legislation at the ballot box, the initiative went further. (Seattle, supra, 458 U.S. at
p. 483.) “It burdens all future attempts to integrate Washington schools in districts
throughout the State, by lodging decisionmaking authority over the question at a
new and remote level of government.” (Ibid., italics added.) This new political
structure “imposes direct and undeniable burdens on minority interests. „If a
governmental institution is to be fair, one group cannot always be expected to
win,‟ [citation]; by the same token, one group cannot be subjected to a debilitating
and often insurmountable disadvantage.” (Id. at p. 484.)
The high court ultimately concluded strict scrutiny applied to the initiative
because, “when the political process or the decisionmaking mechanism used to
address racially conscious legislation — and only such legislation — is singled
11
The majority also emphasized that, despite the dissent‟s assertions to the
contrary, it was not creating a constitutional right either to local decisionmaking or
to desegregative busing. (Seattle, supra, 458 U.S. at p. 480, fn. 23.) Rather, its
decision was predicated upon “the comparative burden [the ballot measure]
imposes on minority participation in the political process — that is, the racial
nature of the way in which it structures the process of decisionmaking. . . . [T]he
State remains free to vest all decisionmaking power in state officials, or to remove
authority from local school boards in a race-neutral manner.” (Ibid.)
14
out for peculiar and disadvantageous treatment, the governmental action plainly
„rests on “distinctions based on race.” ‟ [Citation.]” (Seattle, supra, 458 U.S. at
p. 485.) It continued, “when the State‟s allocation of power places unusual
burdens on the ability of racial groups to enact legislation specifically designed to
overcome the „special condition‟ of prejudice, the governmental action seriously
„[curtails] the operation of those political processes ordinarily relied upon to
protect minorities.‟ (United States v. Carolene Products Co. (1938) 304 U.S. 144,
153, fn. 4.)” (Seattle, at p. 486.) The court thus concluded the initiative violated
the Fourteenth Amendment and was invalid. (Seattle, at p. 487.)12
3. Crawford
In 1963, minority students attending school in the Los Angeles Unified
School District filed a class action in state court seeking to desegregate the
district‟s schools. (Crawford, supra, 458 U.S. at pp. 529-530.) In 1970, the trial
court found substantial segregation in violation of the state and federal
Constitutions and ordered the district to prepare a desegregation plan. (Id. at
p. 530.) Although the court had found de jure segregation in violation of the
Fourteenth Amendment, we affirmed its ruling based solely upon California‟s
equal protection clause. (Ibid. [citing Crawford v. Board of Education (1976) 17
Cal.3d 280].) We explained the state Constitution was broader than its federal
counterpart, requiring districts to take reasonable steps to address segregation,
12
It also noted that, “Certainly, a state requirement that „desegregation or
antidiscrimination laws,‟ [citation], and only such laws be passed by a unanimous
vote of the legislature would be constitutionally suspect. It would be equally
questionable for a community to require that laws or ordinances „designed to
ameliorate race relations or to protect racial minorities,‟ [citation], be confirmed
by a popular vote of the electorate as a whole, while comparable legislation is
exempted from a similar procedure.” (Seattle, supra, 458 U.S. at pp. 486-487.)
15
“ „whether [it] be de facto or de jure in origin.‟ ([Crawford v. Board of Education,
supra,] 17 Cal.3d at [p.] 290.)” (Crawford, supra, 458 U.S. at pp. 530-531.)
On remand, the trial court considered possible desegregation plans, first
approving a plan including mandatory busing and then considering alternatives.
(Crawford, supra, 458 U.S. at p. 531.) In the meantime, California‟s voters passed
Proposition 1, amending article I, section 7 of the state Constitution. (Crawford,
at pp. 531-532 & fn. 5.) The proposition conformed the power of state courts to
order busing for any reason to federal courts‟ power under the Fourteenth
Amendment, but did not prohibit schools boards “ „from voluntarily continuing or
commencing a school integration plan.‟ ” (Id. at p. 532 & fn. 6, quoting Cal.
Const., art. I, § 7, as amended Nov. 6, 1979.)
Following Proposition 1‟s passage, the school district sought to halt all
mandatory student reassignment and busing, but the trial court denied the request
based on its prior finding of de jure segregation in violation of the federal
Constitution. (Crawford, supra, 458 U.S. at p. 533.) The state Court of Appeal
reversed. It concluded the trial court‟s finding of de jure segregation was not
supported, and thus Proposition 1 applied, so it barred the trial court from ordering
mandatory student reassignment and busing. (Id. at pp. 533-534.) The Court of
Appeal also concluded Proposition 1 was constitutional under the Fourteenth
Amendment because California was not obliged to provide a greater remedy
against racial segregation than what was provided under the federal Constitution.
(Crawford, at p. 534.) We denied review, and the high court granted certiorari.
(Ibid.)
The Supreme Court held Proposition 1 did not violate the Fourteenth
Amendment generally, or the political structure doctrine specifically, concluding
the initiative merely repealed this court‟s interpretation of California‟s
Constitution as imposing broader desegregation obligations than those imposed by
16
the federal Constitution. (Crawford, supra, 458 U.S. at pp. 535-536, 537, fn. 14.)
The high court distinguished Hunter and Seattle in three critical respects: first, it
noted that, under Proposition 1, school districts remained free as before to adopt
reassignment and busing plans based on race to combat segregation (id. at p. 536);
second, it noted Proposition 1 did not single out the issue of desegregative student
assignment and busing, but rather, it removed state courts‟ power to order
reassignment and busing for any reason, racial or otherwise (id. at p. 538, fn. 18);
and third, it noted Proposition 1 constituted a mere repeal of a right by the same
entity — the people — who created it in the first place (via adoption of the state
Constitution) (Crawford, at p. 542; id. at p. 547 (conc. opn. of Blackmun, J.).)13
4. Summary of the Doctrine’s Scope
From these cases, the contours of the political structure doctrine can be
delineated. For a law to violate the doctrine, and thus require application of
heightened scrutiny, two conditions must be met.
First, the law must single out a racial issue for special treatment. (Seattle,
supra, 458 U.S. at pp. 470-474; Hunter, supra, 393 U.S. at pp. 390-391.)14 That a
law is facially neutral is of no consequence (Seattle, at p. 471; Hunter, at pp. 390-
391); rather, we ask whether it was “effectively drawn for racial purposes.”
(Seattle, at p. 471.) In speaking of a law‟s “purpose,” we do not mean whether it
13
The high court issued its opinions in Seattle and Crawford on the same day.
Notably, four members in the Seattle majority were also in the Crawford majority
(Justices Brennan, White, Blackmun (the author of Seattle), and Stevens).
14
Although the court‟s analysis in Hunter and Seattle concerned racial
minorities, nothing suggests the doctrine would not also apply to other suspect
classes, such as women. (Cf. Evans v. Romer (Colo. 1993) 854 P.2d 1270, 1279-
1282 [concluding the principle cannot be logically limited to the race context],
affd. on other grounds sub. nom. Romer v. Evans (1996) 517 U.S. 620.)
17
was motivated by invidious intent. (Id. at pp. 484-486.) A racial purpose exists
where the law was enacted because of, rather than in spite of, its effect upon the
racial issue (id. at p. 471) or where the law‟s “impact falls on the minority”
(Hunter, at p. 391) because the repealed policy “inures primarily to [minorities‟]
benefit . . . and is designed for that purpose.” (Seattle, at pp. 471-472.)
Second, the law must restructure the political process in a nonneutral
manner, imposing unique burdens on minorities‟ future efforts to enact beneficial
legislation. (Seattle, supra, 458 U.S. at pp. 474, 479-480; Hunter, supra, 393 U.S.
at pp. 390-391.)15 In other words, we ask whether the law effectively entrenches
the result by altering the process such that a “comparative structural burden [is]
placed on the political achievement of minority interests” (Seattle, at p. 474,
fn. 17) in contrast to the “ „treatment . . . afforded other problems in the same
area‟ ” (id. at pp. 479-480).
For a violation of the doctrine to be established, both conditions must be
met; one alone will not suffice. For example, the repeal of a law advantaging
racial minorities certainly singles out a racial issue for special treatment.
However, without more, the mere repeal of such a law by the enacting
governmental entity does not run afoul of the doctrine. (Crawford, 458 U.S. at
p. 547 (conc. opn. of Blackmun, J.); Seattle, supra, 458 U.S. at pp. 483; Hunter,
supra, 393 U.S. at p. 390 & fn. 5.)16 It simply “reflects the normal operation of
15
As Hunter and Seattle demonstrate, a law can restructure the political
process either explicitly (e.g., the amended charter in Hunter explicitly required
that future housing discrimination ordinances receive voter approval before going
into effect) or implicitly (e.g., the voter initiative taking away school boards‟
power to order desegregative busing in Seattle had the practical effect of requiring
another ballot measure or action by the state legislature).
16
Indeed, the high court indicated that, had the voters in Hunter merely
repealed the fair housing ordinance or had the school board in Seattle ended its
(footnote continued on next page)
18
the political process in which there are winners and losers. Repeal of legislation
favorable to the interests of a racial minority simply indicates that a prior winner
has lost . . . [but] does not alter or distort the existing political process in any
way.” (Amar & Caminker, Equal Protection, Unequal Political Burdens, and the
CCRI (1996) 23 Hastings Const. L.Q. 1019, 1044 (Amar and Caminker); Hunter,
at p. 394 (conc. opn. of Harlan, J.).)
As another example, amending California‟s Constitution to require that 25
percent of the electorate sign a petition before an initiative can qualify to be placed
on the ballot (as opposed to the current, lower requirement in Cal. Const., art. II,
§ 8) would without a doubt “make it more difficult for minorities to achieve
favorable legislation” via the initiative process. (Hunter, supra, 393 U.S. at
pp. 393-394 (conc. opn. of Harlan, J.).) However, such an alteration would not
violate the doctrine because such a change would be “grounded in neutral
principle.” (Id. at p. 395; see Seattle, supra, 458 U.S. at p. 480, fn. 23.) Because
such a change to the process would “make it more difficult for every group in the
community to enact comparable laws,” there would continue to be a level playing
field on which vying political groups could compete. (Id. at p. 470.)
Thus, only when a law singles out a racial issue for special treatment and
alters the political process, imposing a unique structural burden on minorities‟
future ability to achieve beneficial legislation, is the political structure doctrine
violated and is the law subject to heightened scrutiny.
(footnote continued from previous page)
race-conscious busing plan without also altering the process for obtaining future
legislation, the doctrine would not have been violated. (Seattle, supra, 458 U.S. at
p. 483; Hunter, supra, 393 U.S. at pp. 389-390 & fn. 5.)
19
B. Proposition 209 and Hi-Voltage
Before explaining why section 31 violates the political structure doctrine, it
is necessary to first briefly revisit Proposition 209, the ballot measure that enacted
section 31, and Hi-Voltage, supra, 24 Cal.4th 537, in which this court construed
section 31‟s scope.
1. Proposition 209 and the November 5, 1996, Election
After Proposition 209 qualified as an initiative constitutional amendment, it
was placed on the November 5, 1996, General Election ballot. Prior to the
election, voters received an official ballot pamphlet prepared by the nonpartisan
Legislative Analyst‟s Office. (Coalition for Economic Equality v. Wilson (N.D.
Cal. 1996) 946 F.Supp. 1480, 1493 (Coalition I).)17 The ballot pamphlet, which
included an official description and analysis of each statewide initiative, described
Proposition 209 as a measure that would eliminate race- and sex-conscious
affirmative action programs in the areas of public employment, contracting, and
education. (Ibid.) The Legislative Analyst‟s brief summary explained “A YES
vote on [Proposition 209] means: The elimination of those affirmative action
programs for women and minorities run by the state or local governments in the
areas of public employment, contracting, and education that give „preferential
treatment‟ on the basis of sex, race, color, ethnicity, or national origin.” “A NO
vote on [Proposition 209] means: State and local government affirmative action
programs would remain in effect to the extent they are permitted under the United
17
The federal district court preliminarily enjoined enforcement of Proposition
209 (Coalition I, supra, 946 F.Supp. at p. 1510), but the injunction was lifted by
the Ninth Circuit (Coalition for Economic Equality v. Wilson (9th Cir. 1997) 122
F.3d 692, rehg. en banc den. Aug. 27, 1997 (Coalition II)). I cite the district
court‟s factual findings, which were also cited by the Ninth Circuit (id. at p. 705)
and this court (Hi-Voltage, supra, 24 Cal.4th at p. 561).
20
States Constitution.” (Ballot Pamp., Gen. Elec. (Nov. 5, 1996), Legis. Analyst‟s
brief summary of Prop. 209, p. 6 (Ballot Pamphlet).)
In addition to its summary of the measure, the Legislative Analyst
provided a more in-depth analysis, emphasizing that passage of the initiative
would effectively abolish all race- and sex-conscious affirmative action programs.
“The federal, state, and local governments run many programs intended to
increase opportunities for various groups — including women and racial and
ethnic minority groups. These programs are commonly called „affirmative action‟
programs. . . . [¶] . . . [¶] [Proposition 209] would eliminate state and local
government affirmative action programs in the areas of public employment, public
education, and public contracting to the extent these programs involve
„preferential treatment‟ based on race, sex, color, ethnicity, or national origin.”
(Ballot Pamp., supra, Legis. Analyst‟s analysis of Prop. 209, p. 30.) The
Legislative Analyst then discussed various race- and sex-conscious affirmative
action programs in the areas of public employment, contracting, and education that
would be banned with the passage of the initiative. (Id. at p. 31.)
In addition to the nonpartisan analysis by the Legislative Analyst, the Ballot
Pamphlet contained partisan arguments submitted by proponents and opponents of
the measure. These arguments further underscored that the central issue at stake in
Proposition 209 was race- and sex-conscious affirmative action (and race-
conscious measures in particular). The argument in favor of the measure stated,
“ „REVERSE DISCRIMINATION‟ BASED ON RACE OR GENDER IS PLAIN
WRONG! [¶] . . . [S]tudents are being rejected from public universities because
of their RACE. Job applicants are turned away because their RACE does not meet
some „goal‟ or „timetable.‟ Contracts are awarded to high bidders because they
are of the preferred RACE. [¶] . . . [¶] . . . Proposition 209 will stop the terrible
programs . . . .” (Ballot Pamp., supra, argument in favor of Prop. 209, p. 32.) The
21
argument against the initiative warned that “California law currently allows
tutoring, mentoring, outreach, recruitment, and counseling to help ensure equal
opportunity for women and minorities. Proposition 209 will eliminate affirmative
action programs like these that help achieve equal opportunity for women and
minorities in public employment, education, and contracting.” (Id., argument
against Prop. 209, p. 33.)
In explaining that Proposition 209 would eliminate race- and sex-conscious
affirmative action programs, the Legislative Analyst, proponents, and opponents
implicitly acknowledged preferential treatment on all other bases would be
unaffected by the ballot measure. (See Hi-Voltage, supra, 24 Cal.4th at p. 566; id.
at pp. 586-587 (conc. & dis. opn. of George, C.J.).) Indeed, this was explicitly
recognized in the rebuttal to the argument against Proposition 209. “Affirmative
action programs that don‟t discriminate or grant preferential treatment [on the
basis of race or sex] will be UNCHANGED. . . . [¶] Note that Proposition 209
doesn‟t prohibit consideration of economic disadvantage. . . . The state must
remain free to help the economically disadvantaged, but not on the basis of race or
sex.” (Ballot Pamp., supra, rebuttal to argument against Prop. 209, p. 33.)
On November 5, 1996, Proposition 209 passed, with 54 percent voting in
favor of the measure and 46 percent voting against. (Coalition I, supra, 946
F.Supp. at p. 1495.) White voters were the only racial group that, as a majority,
voted in favor of Proposition 209, with 63 percent voting for passage. (Id. at
p. 1495, fn. 12.) 74 percent of Black voters, 76 percent of Latino voters, and 61
percent of Asian-American voters opposed the measure. (Ibid.) 61 percent of
men voted in favor, while 52 percent of women voted against. (Ibid.)
22
2. Hi-Voltage and Our Construction of Section 31
In 2000, this court considered the validity of a program adopted by the City
of San Jose to encourage the participation of minority-owned business enterprises
and women-owned business enterprises in public work projects. (Hi-Voltage,
supra, 24 Cal.4th at p. 542.) Contractors bidding for city projects were required to
fulfill either an outreach or a participation component, and the plaintiffs argued
that the program‟s requirements violated section 31. (Hi-Voltage, at pp. 543-544.)
We agreed, concluding the program‟s “outreach option affords preferential
treatment to [minority-/women-owned business enterprise] subcontractors on the
basis of race or sex, and the participation option discriminates on the same bases
against non-[minority-/women-owned business enterprise] subcontractors as well
as general contractors that fail to fulfill either of the options when submitting their
bids.” (Id. at p. 560.)
In reaching this conclusion, we reviewed the language of section 31 as well
as the ballot materials accompanying Proposition 209. (Hi-Voltage, supra, 24
Cal.4th at pp. 559-562.) We noted the measure‟s language was not limited in any
way and effectively prohibited all race- and sex-conscious affirmative action
programs. (Id. at pp. 559-560; id. at pp. 591-592 (conc. & dis. opn. of George,
C.J.).) Turning to the ballot materials, we concluded the partisan statements and
the Legislative Analyst‟s analysis provided further support for our construction.
(Id. at pp. 560-562.) In particular, we noted the proponents‟ statements focused on
race- and sex-conscious affirmative action programs and evinced a clear desire to
ban all such programs. (Id. at pp. 560-561.)
This court ultimately concluded the electorate intended to do “something
more” than restate existing law prohibiting discrimination on the basis of race or
23
sex. (Hi-Voltage, supra, 24 Cal.4th at p. 561 [citing Coalition I, supra, 946
F.Supp. at p. 1489].)18 That “something more,” the majority reasoned, was a
repudiation of case law permitting race- and sex-conscious measures “formulated
to remediate the lingering effects of past discrimination or conspicuous
imbalance” in public contracting, employment, and education. (Hi-Voltage, supra,
at p. 566.) We accordingly held that, following the adoption of section 31, “any
action that discriminates or grants preferential treatment on the basis of race or sex
would be forbidden,” including race- and sex-conscious measures that would
otherwise be permitted by the equal protection clause. (Hi-Voltage, at pp. 566-
567.)
Thus, the practical effect of section 31‟s ban of race- and sex-conscious
measures is limited to just one category of legislation. It has no independent effect
on legislation that cannot survive heightened scrutiny because such legislation
already violates the Constitution. (See Hi-Voltage, supra, 24 Cal.4th at p. 561.) It
also has no effect on legislation required by the Constitution (U.S. Const., art. VI,
cl. 2), when, for example, a public entity seeks to remedy its own past intentional
discrimination (Hi-Voltage, at p. 568). Consequently, section 31‟s only
nonredundant effect is on race- and sex-conscious measures that are permitted, but
not required, by the Constitution, i.e., legislation that, despite classifying on the
basis of race or sex, can survive heightened scrutiny. For race-conscious programs
to do so, they must be narrowly tailored and justified by a compelling interest.
18
As the court in Coalition I, supra, 946 F.Supp. at page 1488, explained,
section 31‟s ban on discrimination “simply reaffirms existing anti-discrimination
protections already provided by the United States and California Constitutions,
and by the 1964 Civil Rights Act . . . [and] creates no change in existing law.”
24
(McLaughlin v. Florida (1964) 379 U.S. 184, 191-192.) Under the high court‟s
decisions, this category of legislation has become increasingly narrow.
For example, in public contracting, a race-conscious program must be
narrowly tailored to remedy the effects of past discrimination by the public entity
itself or by private sector entities within its jurisdiction. (Richmond v. J. A.
Croson Co. (1989) 488 U.S. 469, 498-506 (Croson).) The Supreme Court has
rejected as insufficiently compelling the remedying of societal discrimination (id.
at p. 505) or the attainment of racial balance in an industry (id. at p. 507).
Similarly, in public employment, remedying the effects of past discrimination by
the public entity is a compelling interest, while remedying societal discrimination
is not. (Wygant v. Jackson Board of Education (1986) 476 U.S. 267, 274 (plur.
opn. of Powell, J.).) In the public education context, in addition to remedying the
effects of past discrimination, the high court has found compelling the promotion
of racial diversity in higher education. (Parents Involved in Community Schools v.
Seattle School District No. 1 (2007) 551 U.S. 701, 720; Grutter v. Bollinger
(2003) 539 U.S. 306, 325.) Thus, the only real change section 31 makes to
existing law is to close an already narrow, albeit significant, window of
constitutionally permissible remedial legislation. (Hi-Voltage, supra, 24 Cal.4th at
p. 568.)
C. Application of the Political Structure Doctrine to Section 31
I now discuss why section 31 violates the political structure doctrine. The
first step of the inquiry requires consideration of whether section 31, while facially
neutral, nonetheless singles out a racial issue for special treatment. (Seattle, supra,
458 U.S. at p. 471.) The answer is plainly yes.
Section 31 prohibits preferential treatment “on the basis of race, sex, color,
ethnicity, or national origin.” (§ 31.) Thus, as with the charter amendment in
25
Hunter, section 31 is explicitly race-conscious. In addition, 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 (i.e., racial minorities
and women) and those seeking beneficial legislation on all other bases (e.g.,
veterans, the economically disadvantaged, in-state residents, local businesses,
physically disabled, athletes, etc.). (Hunter, supra, 393 U.S. at pp. 390-391; see
Ballot Pamp., supra, rebuttal to argument against Prop. 209, p. 33.) For example:
California (along with many other entities) grants civil service preferences to
veterans (see, e.g., Gov. Code, § 18978); cities and counties may grant contracting
preferences to locally owned or economically disadvantaged businesses (see, e.g.,
S.F. Admin. Code, ch. 6, § 6.4; id., ch. 14A)19; some public school districts grant
preferences to children of former students (see, e.g., Mehta, Public Schools Offer
Legacy Admissions, L.A. Times (May 16, 2009) p. A3 [discussing school districts‟
adoption of admission policy giving preference to out-of-district children of
former students]). Put another way, section 31 does not purport to regulate the
enactment of all preferential legislation in the operation of public employment,
public education, or public contracting, but rather only race- and sex-conscious
preferences in those arenas.
Moreover, there can be no serious doubt that section 31 was “enacted
„ “because of,” not merely “in spite of,” its adverse effects upon‟ ” race- and sex-
based affirmative action, and was therefore “effectively drawn for racial
19
The manner in which a city contracts is generally a municipal affair.
(Amara v. Cintas No. 2 (2008) 163 Cal.App.4th 1157, 1175.) However, the Public
Contract Code requires cities and counties to use the lowest responsible bidder on
public works projects (Pub. Contract Code, §§ 20160, 20162 [cities]; id.,
§§ 20120, 20128 [counties]) with certain enumerated exceptions (see, e.g., id.,
§ 2002 [local agencies can give small business preference].)
26
purposes.” (Seattle, supra, 458 U.S. at p. 471.) Indeed, the ballot summary and
the partisan statements underscore that the measure‟s central purpose was to
effectively eliminate all race- and sex-based affirmative action. (E.g., Ballot
Pamp., supra, Legis. Analyst‟s brief summary of Prop. 209, p. 6; id., argument in
favor of Prop. 209, p. 32.) We arrived at the same conclusion in Hi-Voltage. (Hi-
Voltage, supra, 24 Cal.4th at pp. 566-567; id. at pp. 591-592 (conc. & dis. opn. of
George, C.J.).)
Finally, affirmative action is a racial issue in the same way that the fair
housing ordinance in Hunter and the desegregative busing in Seattle were racial
issues. (Seattle, supra, 458 U.S. at pp. 471-472; Hunter, supra, 393 U.S. at
p. 391.) That is, “although [section 31] on its face treats [Whites and racial
minorities, men and women] in identical manner, the reality is that the law‟s
impact falls on the minority.” (Hunter, at p. 391.) Affirmative action “inures
primarily to the benefit of the minority and is designed for that purpose.” (Seattle,
at pp. 471-472.) And while racial minorities and women could undoubtedly be
counted among both Proposition 209‟s opponents and supporters, that does not
serve to distinguish Hunter or Seattle. (Seattle, at p. 474.) For our purposes, “it is
enough that [racial minorities and women] may consider [race- and sex-conscious
affirmative action] to be „legislation that is in their interest.‟ [Citation.]” (Ibid.)20
In summary, based on section 31‟s language, its different treatment of race- and
sex-conscious legislation as compared to other legislation in the same area, its
avowed purpose, and whom it primarily affects, I conclude section 31 without
20
Indeed, as previously noted, the substantial majority of Blacks (74 percent),
Latinos (76 percent), and Asian-Americans (61 percent), and a majority of women
(52 percent), voted against Proposition 209. (Ante, at p. 22.)
27
question singles out a racial issue for special treatment, triggering application of
the political structure doctrine. (See Seattle, at p. 474.)21
The second step of the inquiry requires consideration of whether section 31
constitutes a nonneutral restructuring of the political process, placing higher
hurdles in front of those seeking race- and sex-conscious measures as opposed to
what those seeking beneficial legislation on all other bases face. (Seattle, supra,
458 U.S. at p. 474 & fn. 17.) As in Hunter and Seattle, the most obvious way to
answer this question is to examine the impact of Proposition 209‟s passage on the
process for obtaining favorable legislation. Because the practical effect of section
31 is the erection of a steep hurdle in front of those seeking race- and sex-
conscious preferential legislation (as compared with those seeking similar
legislation on other bases), section 31 obviously “work[s] a reallocation of power
of the kind condemned [by the high court].” (Seattle, at p. 474.)
Prior to Proposition 209, any person seeking beneficial legislation for any
group in the areas of public contracting, employment, or education could petition
their government representatives to adopt, amend, or retain such a program.
(Coalition I, supra, 946 F.Supp. at p. 1498.) For example, in matters of public
21
The majority does not dispute that section 31 singles out a racial issue for
special treatment. While the concurring opinion does so (conc. opn. of Corrigan,
J., ante, at p. 3), its rationale lacks a reasoned basis. It relies on the fact that
section 31 targets not only race, but gender as well, thus “broaden[ing] the
application of the measure.” (Conc. opn. of Corrigan, J., ante, at p. 3.) Of course,
the charter amendment in Hunter applied not only to race, but to religion as well;
this fact did not prevent the charter amendment‟s invalidation. (Hunter, supra,
393 U.S. at p. 387.) Moreover, as noted by Judge Norris in his dissent from the
Ninth Circuit‟s decision to deny en banc rehearing of the panel decision in
Coalition II, combining various suspect classes into one undifferentiated group for
purposes of equal protection analysis is without basis in case law or common
sense. (Coalition II, supra, 122 F.3d at p. 716 (opn. of Norris, J. on den. rehg.).)
28
contracting, Public Contract Code section 2000 gave local agencies the discretion,
subject to certain limitations, to give bidding preferences to contractors who had
complied with affirmative action requirements. (See Monterey Mechanical Co. v.
Sacramento Regional County Sanitation Dist. (1996) 44 Cal.App.4th 1391, 1400-
1403; Domar Electric, Inc. v. City of Los Angeles (1995) 41 Cal.App.4th 810, 820-
822.) With the passage of Proposition 209, the decision to permit and create such
programs has been withdrawn from the Legislature and from local agencies, and
now the adoption of affirmative action programs can only be accomplished via
amendment of the state Constitution. Thus, the political mechanisms for seeking
race- and sex-conscious legislation have been “modified to place effective
decisionmaking authority over [such legislation] at a different level of
government.” (Seattle, supra, 458 U.S. at p. 474.) On the other hand, the City
may continue to grant contracting preferences on other bases (see, e.g., S.F.
Admin. Code, ch. 6, § 6.4; id., ch. 14A), and those seeking preferential legislation
not involving race or sex continue to have the opportunity to lobby local
governmental entities and the Legislature for the expansion of such preferences or
the creation of new ones.
That section 31‟s placement in the state Constitution erects a new and
formidable barrier to those advocating for race- and sex-conscious affirmative
action programs can hardly be doubted. Amending California‟s Constitution can
be accomplished via either of two methods, both of which impose heavy burdens.
First, the state Constitution can be amended via passage of another initiative. (Cal.
Const., art. II, § 8.) To qualify a ballot measure, sponsors would initially have to
obtain signatures equal to 8 percent of the previous gubernatorial vote. (Ibid.) To
put that in context, to qualify an initiative constitutional amendment for the 2010
ballot, sponsors would have had to collect 694,354 valid signatures. (Cal. Sect. of
State, Initiative Guide (2010), at <http://www.sos.ca.gov/elections/ballot-
29
measures/how-to-qualify-an-initiative.htm > [as of Aug. 2, 2010].) Because a
number of signatures tend to be disqualified, approximately 50 percent more
“raw” signatures than the threshold amount must be collected (Coalition I, supra,
946 F.Supp. at p. 1498), and they must be obtained within a 150-day period (Elec.
Code, § 336).22 If enough valid signatures are gathered, the initiative is placed on
the ballot at the next statewide election and must obtain the approval of a majority
of voters. (Cal. Const., art. II, § 8.)
As a second method, the Legislature can amend the state Constitution by
securing a two-thirds vote of approval of a proposed amendment by both houses.
(Cal. Const., art. XVIII, § 1.) If the Legislature does so, the measure is placed on
the ballot and must garner a majority of votes. (Id., § 4.)
If sponsors are able to successfully navigate getting the proposed
amendment on the ballot via either process, substantial funds will then be required
to run a statewide campaign. (Coalition I, supra, 946 F.Supp. at p. 1499.)
Because of the size of California, such campaigns tend to be very expensive — as
of October 1996, for example, the campaign in support of Proposition 209 had
spent $3.1 million. (Ibid.) As a more recent example, in the November 2008
election, $75 million was spent in support of and against Proposition 8, the
initiative to ban same-sex marriage. (McKinley & Goodstein, Bans in 3 States on
Gay Marriage, N.Y. Times (Nov. 6, 2008) p. A20.)23
22
To collect 150 percent of the threshold number, a measure‟s sponsors
would have to collect 1,041,531 signatures. Given a 150-day window,
approximately 7,000 signatures would have to be collected on average per day.
23
Even in the case of a comparatively less controversial November 2008
ballot measure, like Proposition 2 (Standards for Confining Farm Animals), the
statewide campaigns in favor and against the initiative spent over $19 million.
(Cal. Sect. of State, Cal-Access Web site, Campaign Finance Activity, <http://cal-
(footnote continued on next page)
30
In light of the substantial hurdles that racial minorities and women (and
only those individuals) must overcome in seeking remedial legislation, section
31‟s ban on constitutionally permissible race- and sex-conscious measures
impermissibly reallocates power.24 It “removes the authority to address [race- and
sex-conscious beneficial legislation] — and only [such legislation] — from the
existing decisionmaking body, in such a way as to burden minority interests.”
(Seattle, supra, 458 U.S. at p. 474.) In the wake of Proposition 209, veterans, the
economically disadvantaged, the physically disabled, children of alumni, in-state
residents, etc., all may continue to seek, obtain, and benefit from preferential
legislation as before.25 That is, they can approach and lobby their school board,
city council, county government, state university, state legislator, or any other
public entity to enact legislation or adopt policies. The same is no longer true for
those seeking race- and sex-conscious legislation, even when the legislation is
narrowly tailored to remedy the effects of past discrimination by a public entity.
(footnote continued from previous page)
access.ss.ca.gov/Campaign/Measures/Detail.aspx?id=1301652> [as of Aug. 2,
2010].)
24
That racial minorities and women can also seek beneficial legislation on all
other bases (e.g., a local, minority-owned business can seek preferences available
to all locally owned businesses) does not alter this conclusion — the same was
true in Hunter and Seattle.
25
The concurring opinion places great weight on the fact section 31 applies to
public employment and education and contracting, arguing that the broad scope of
section 31 distinguishes it from the laws at issue in Hunter and Seattle. (Conc.
opn. of Corrigan, J., ante, at pp. 3-4.) I disagree. As Judge Norris noted, “Neither
Hunter nor Seattle — nor common sense, for that matter, supports the proposition
that expanding the levels at which the State disadvantages minorities will render
that action any less constitutionally suspect.” (Coalition II, supra, 122 F.3d at
p. 715 (opn. of Norris, J. on den. rehg.).)
31
Thus, the practical effect of section 31 is to restructure the political process in a
nonneutral fashion. (Seattle, at pp. 479-480.)26
Although I conclude that section 31‟s ban of race- and sex-conscious
affirmative action violates the political structure doctrine, this does not mean that,
once adopted, affirmative action measures may never be abolished. As the
Supreme Court has repeatedly explained, the doctrine is not violated when
enacting governmental entities merely overturn previous policies or when voters
simply repeal unpopular legislation at the ballot box. (Seattle, supra, 458 U.S. at
p. 483; Hunter, supra, 393 U.S. at p. 390, fn. 5.)27 Section 31, however, works
more than a mere repeal of beneficial legislation by the enacting entity. (Seattle,
at p. 483.) It burdens all future attempts to obtain race- and sex-conscious
remedies by relocating decisionmaking power over such legislation from the
public entities that had previously wielded it to a remote level of government, the
state Constitution. (Seattle, at p. 483.)28
26
Neither the majority nor the concurrence disputes that section 31 puts
unique hurdles in front of those who would seek the future enactment of race- and
sex-conscious preferential legislation as opposed to those who seek preferential
legislation on all other bases.
27
For example, Governor Pete Wilson issued an executive order on June 1,
1995, repealing race- and gender-conscious employment practices under his
immediate control. (Governor‟s Exec. Order No. W-124-95 (June 1, 1995).)
Similarly, on July 20, 1995, the Regents of the University of California acted of
their own accord to discontinue the use of race and gender preferences in
contracting, employment, and admissions decisions. (Regents of U.C., res. No.
SP-1 [admissions]; id., res No. SP-2 [contracting and employment].) While both
of these pre-Proposition 209 decisions resulted in the elimination of race- and sex-
conscious preferences, they simply reflected the operation of the normal political
process.
28
For example, while the Regents subsequently decided to rescind resolution
Nos. SP-1 and SP-2 (Policy on Future Admissions, Employment, and Contracting
(footnote continued on next page)
32
Significantly, section 31‟s most profound impact is felt in communities
where affirmative action does not arouse substantial opposition. (Seattle, supra,
458 U.S. at p. 483; Hunter, supra, 393 U.S. at pp. 395-396 (conc. opn. of Harlan,
J.).) Where a public entity‟s decision to enact affirmative action would be
unpopular, voters could have simply overturned the policy via referendum or
election of new representatives — in such instances, section 31‟s impact is slight.
Where affirmative action is relatively uncontroversial, however, section 31‟s
alteration of the process for enacting future legislation “imposes direct and
undeniable burdens on minority interests. „If a governmental institution is to be
fair, one group cannot always be expected to win,‟ [citation]; by the same token,
one group cannot be subjected to a debilitating and often insurmountable
advantage.” (Seattle, at p. 484.)29
The majority does not contest that section 31 was enacted because of its
effect on race- and sex-conscious affirmative action or that, as a result, section
31‟s impact falls primarily on minorities. Nor does it dispute that section 31
works more than a mere repeal, but rather imposes significant burdens on future
efforts to enact race- and sex-conscious preferential legislation. These facts, I
submit, establish a clear violation of the political structure doctrine and require,
under controlling United States Supreme Court precedent, invalidation of section
31. The majority concludes otherwise. Its main — indeed its only — argument is
that the doctrine does not apply when race- and sex-conscious preferential
(footnote continued from previous page)
(May 16, 2001)), the policy reversal is essentially without effect in light of section
31.
29
In San Francisco, for example, 70.5 percent of the electorate opposed
Proposition 209. (Coalition I, supra, 946 F.Supp. at p. 1507.)
33
legislation is at issue. (Maj. opn., ante, at pp. 16-20.)30 As this distinction finds
no support in Hunter or Seattle, however attractive the majority‟s holding might
be to some as a matter of policy, it is incorrect as a matter of law. In reaching its
conclusion, the majority misreads and misapplies the high court‟s political
structure doctrine cases, imposing requirements and finding exceptions that do not
appear in, and are not supported by, Hunter or Seattle.
The majority contends the legislation invalidated in Hunter and Seattle is
distinguishable from section 31 in that the former “obstruct[ed] equal treatment”
while the latter “ban[s] preferences.” (Maj. opn., ante, at p. 17.) In response to
the City‟s argument that race-conscious preferences are as much “beneficial
legislation” — the phrase used by the Seattle court — as the antidiscrimination
ordinance in Hunter or the race-conscious busing policy in Seattle, the majority
declares: “We do not think, however, that the term „beneficial legislation‟ can
bear the weight the City would place upon it.” (Maj. opn., ante, at p. 17.)31 The
majority‟s rejoinder is curious; it is difficult to see how race-conscious preferential
30
The majority relies on decisions of the Ninth and Sixth Circuit Courts of
Appeals (Coalition to Defend Affirmative Action v. Granholm (6th Cir. 2006) 473
F.3d 237; Coalition II, supra, 122 F.3d 692). (Maj. opn., ante, at pp. 13, 16-17,
19.) As the majority acknowledges (id. at p. 16), however, while decisions of
lower federal courts on questions of federal law are persuasive, they do not bind
us; rather, we make an independent determination of federal law. (Barrett v.
Rosenthal (2006) 40 Cal.4th 33, 58; see, e.g., Steffel v. Thompson (1974) 415 U.S.
452, 482, fn. 3 (conc. opn. of Rehnquist, J.).)
31
To the extent the majority opinion can be read to imply the Supreme Court
could not have anticipated the phrase “beneficial legislation” might be read to
include race-conscious affirmative action (maj. opn., ante, at pp. 17-19), I
disagree. Executive orders promulgated by Presidents Kennedy (Exec. Order No.
10925, 26 Fed.Reg. 1977 (Mar. 8, 1961) and Johnson (Exec. Order No. 11246, 30
Fed.Reg. 12319 (Sept. 28, 1965)) required the use of affirmative action to combat
discrimination. At a minimum, by the time Seattle was decided in 1982, the
notion of race- and sex-conscious affirmative action was very well understood.
34
legislation does not constitute “beneficial legislation” (Seattle, supra, 458 U.S. at
p. 467) or “legislation that is in [minorities‟] interest” (Hunter, supra, 393 U.S. at
p. 395 (conc. opn. of Harlan, J.)). It is more reasonable to assume the high court
understood that “beneficial legislation” is an expansive phrase and used it
intending it be so construed. The majority points to nothing in either Hunter or
Seattle to suggest the Supreme Court intended the cramped reading the majority
now adopts. To the contrary, there is substantial evidence in those opinions
supporting the notion that the high court did intend for its language to be read
broadly.
For example, the high court discussed minorities‟ ability “to enact
legislation in [their] behalf” (Hunter, supra, 393 U.S. at p. 393); “the ability of
minority groups to achieve beneficial legislation” (Seattle, supra, 458 U.S. at
p. 467); minorities‟ ability “ „to achieve favorable legislation‟ ” (id. at p. 469,
citing Hunter, at p. 394 (conc. opn. of Harlan, J.)); the ability “to achieve
legislation that is in [minorities‟] interest” (Hunter, at p. 395 (conc. opn. of Harlan,
J.)); the “burden [on] minority interests” (Seattle, at pp. 474, 484); the “political
achievement of minority interests” (id. at p. 474, fn. 17); and “the ability of racial
groups to enact legislation specifically designed to overcome the „special
condition‟ of prejudice” (id. at p. 486). That the Supreme Court repeatedly spoke
in expansive terms bolsters the City‟s argument — the political structure doctrine
is concerned not with minorities‟ actual legislative goals, but with their equal and
meaningful access to the political process. (See ante, at p. 7.)32 The majority‟s
32
The majority goes astray by wrongly focusing on the difference between
race-conscious preferences on the one hand and the Hunter housing ordinance and
the Seattle busing policy on the other hand. (Maj. opn., ante, at pp. 17-19.) The
focus should instead be on the erected legislative hurdles: section 31, the Hunter
charter amendment, and the Seattle statewide initiative. All three similarly
(footnote continued on next page)
35
reliance on the preferential nature of the legislation is therefore an inapt basis for
distinguishing Hunter and Seattle.
Moreover, the majority‟s efforts to distinguish “between initiatives
obstructing equal treatment and initiatives banning preferences” (maj. opn., ante,
at p. 17) elides the fact that section 31‟s only practical effect is on the narrow
group of laws that can survive heightened constitutional scrutiny. (Ante, at p. 24.)
Given that reality, the distinction between the race-conscious affirmative action
here and the antidiscrimination law in Hunter, supra, 393 U.S. at page 386, is
illusory.33 Before adopting race-conscious preferential legislation, a public entity
must document in some detail the existence of discrimination to provide “a „strong
basis in evidence that remedial action [is] necessary.‟ [Citation.]” (Croson, supra,
488 U.S. at p. 500.) Thus, the 2003 Ordinance at issue here is in a very direct way
an antidiscrimination program, in which any preference granted must be strongly
justified by the tangible continuing effects of the City‟s own past discrimination.
To withdraw from public entities the ability to engage in this kind of racial
antidiscrimination program, and to withdraw from minorities the capacity to
advocate for such local antidiscrimination legislation in the future, while at the
same time permitting local entities to grant preferences for other groups (without
(footnote continued from previous page)
burdened minorities‟ equal and meaningful access to the political process,
undermining their ability to achieve favorable legislation in a nonneutral fashion.
33
The difference between constitutionally permissible affirmative action and
the race-conscious busing addressing de facto segregation in Seattle is even less
clear. Moreover, as regarding the political structure doctrine, the Supreme Court
necessarily rejected any distinction between the antidiscrimination law in Hunter
and the race-based remedial efforts in Seattle.
36
having to make a similar showing of discrimination), is precisely the kind of
selective political restructuring that Hunter and Seattle sought to forbid.
As an additional rationale for distinguishing section 31, the majority cites
two related arguments made by the Ninth Circuit. The first argument is that the
Constitution does not require race-conscious measures “it barely permits.”
(Coalition II, supra, 122 F.3d at p. 709; see maj. opn., ante, at p. 13.) This, of
course, is a red herring. No one contends the Constitution requires race- or sex-
conscious affirmative action. Nor is that relevant to the inquiry, as neither the
adoption of the housing ordinance in Hunter nor the busing policy in Seattle was
constitutionally required. Rather, the focus of the political structure doctrine is on
nonneutral structural obstacles to constitutionally permitted, not required,
legislation in minorities‟ interest. “What the Court did hold is that states may not
place political obstacles in the way of laws that favor minorities, nor may they
remove such laws wholesale from the political process. All that is constitutionally
required is that minorities have the opportunity, on equal terms, to seek
„legislation in [their] behalf‟ within existing channels of government. [Citation.]”
(Coalition II, at p. 715 (opn. of Norris, J. on den. rehg.).)
Second, the majority suggests that section 31 cannot violate the
Constitution, as it is consistent with the “ „core purpose‟ of the equal protection
clause.” (Maj. opn., ante, at p. 19.) The Ninth Circuit put it more lyrically: “ „[I]t
would be paradoxical to conclude that by adopting the Equal Protection Clause of
the Fourteenth Amendment, the voters of the State thereby had violated it.‟
(Crawford, [supra,] 458 U.S. at [p.] 535.)” (Coalition II, supra, at p. 709.) This is
a canard. Section 31 is not coextensive with the equal protection clause. While it
is true that the Constitution permits race- and sex-conscious measures only if they
can survive heightened scrutiny, section 31 goes further. As the Attorney General
puts it, “[section 31] closes a door to race- and gender-conscious programs that the
37
Fourteenth Amendment leaves open.” And it does so while simultaneously
leaving others free to seek preferential legislation on all other bases. 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. (Hunter, supra, 393 U.S. at pp. 390-391.)34
Finally, while the majority disclaims the argument (maj. opn., ante, at
p. 19, fn. 10), it bears noting that Coalition II questioned the vitality of the
political structure doctrine in light of recent decisions by the high court.
(Coalition II, supra, 122 F.3d at pp. 704, 705, fn. 13; see also conc. opn. of
Corrigan, J., ante, at pp. 4-5.)35 I do not perceive the same irreconcilability and
am not convinced the Supreme Court‟s more recent conventional equal protection
decisions undermine Hunter and Seattle. (See Amar & Caminker, supra, 23
Hastings Const. L.Q. at pp. 1035-1039.) Whereas more recent Supreme Court
cases have restricted the type of affirmative action remedies permitted under the
Constitution, they do not undermine the principle that minorities may not be
prevented, via nonneutral political restructuring, from seeking beneficial
legislation — including constitutionally permissible affirmative action remedies.
Moreover, as noted before, our task is to faithfully apply the Supreme
Court‟s precedent, not to prognosticate what it might do if presented with the
34
As one commentator aptly put it, “[i]f the Equal Protection Clause does not
prohibit the race and gender preferences barred by Proposition 209, compliance
with the Equal Protection Clause cannot constitute a justification for Proposition
209‟s discriminatory invalidation of race and gender preferences.” (Spann,
Proposition 209 (1997) 47 Duke L.J. 187, 255.)
35
Of course, while the majority states it does not question the doctrine‟s
“continuing validity” (maj. opn., ante, at p. 19, fn. 10), it nonetheless uses
“historical context” (ibid.) to justify a cramped reading of the doctrine. (See ante,
at pp. 33-34.)
38
opportunity to reconsider the doctrine. “If a precedent of [the high court] has
direct application in a case, yet appears to rest on reasons rejected in some other
line of decisions, the [lower court] should follow the case which directly controls,
leaving to [the high court] the prerogative of overruling its own decisions.”
(Rodriguez de Quijas v. Shearson/American Express, Inc., supra, 490 U.S. at
p. 484.)36
Thus, applying the Supreme Court‟s decisions in Hunter and Seattle, I
conclude section 31‟s ban on constitutionally permissible race- and gender-
conscious remedial measures violates the political structure doctrine, and I would
remand the case for consideration of whether section 31 can withstand heightened
scrutiny. In so concluding, I fully acknowledge the controversial nature of race-
and sex-conscious measures (even when undertaken to remedy past
discrimination) and the considerable passions on both sides of the issue. However,
as Judge Henderson wisely commented in Coalition I, supra, 946 F. Supp. at page
1490, “this case does not call upon this Court to adjudicate whether affirmative
action is right or wrong, or whether it is no longer appropriate policy for
36
In Romer v. Evans, supra, 517 U.S. 620, the high court invalidated a state
initiative prohibiting public entities from taking actions to protect gays and
lesbians. The state supreme court concluded the measure was subject to strict
scrutiny, relying on the political structure doctrine. (Id. at pp. 625-626.) The
Supreme Court affirmed the judgment, but based its decision on a conventional
equal protection analysis. (Id. at pp. 633-634.) In dissent, Justice Scalia suggested
the majority “implicitly reject[ed]” the state supreme court‟s political structure
doctrine holding. (Id. at p. 640, fn. 1 (dis. opn. of Scalia, J.).) I respectfully
disagree. To the contrary, Justice Kennedy‟s majority opinion is fully consistent
with the underpinnings of the political structure doctrine. (See id. at p. 633.)
Moreover, contrary to the concurrence‟s suggestion (conc. opn. of Corrigan, J.,
ante, at p. 5, fn. 3), the applicability of the doctrine in Romer was not so plain.
Rather, the invalidated initiative in Romer explicitly targeted and burdened gays
and lesbians. Thus, a conventional equal protection analysis was called for.
39
addressing the continuing effects of past and present discrimination against racial
minorities and women. Such questions, while they are most certainly of vital
public policy interest, lie beyond the purview of this Court. . . . [¶] Rather, the
substantive issues raised by this action are considerably more narrow, albeit no
less important: whether the particular method chosen by Proposition 209 to curtail
affirmative action is unlawful because it . . . violates the rights of women and
minorities to fully participate in our political system . . . .” As I conclude the
answer is yes, I dissent from the majority‟s contrary view.
III.
The City argues it can demonstrate triable issues exist regarding whether it
was constitutionally obliged to enact the 2003 Ordinance, given ample evidence of
pervasive intentional discrimination in the awarding of public contracts; that is,
that the Ordinance may be the only, or at least the most likely, means of
remedying purposeful racial discrimination. As the majority explains, the trial
court failed to meaningfully address this argument and remanding for a hearing
would be helpful to reviewing courts. (Maj. opn., ante, at pp. 24-26.) I fully
concur.
I also fully agree with the majority that the Board of Supervisor‟s
legislative findings “do not bind the court on remand” and that, where racial
classifications are at issue, “ „simple legislative assurances of good intention
cannot suffice‟ [Croson, supra, 488 U.S. at p. 500].” (Maj. opn., ante, at p. 28,
fn. 20.) When, however, as in the present case, remedial measures rest not on such
“simple legislative assurances,” but on detailed factual findings, respect for
constitutional separation of powers requires they be given considerable weight.
(Connecticut Indemnity Co. v. Superior Court (2000) 23 Cal.4th 807, 814.)
To recap, before adopting the 1989 version of the Ordinance, the City
considered the testimony of 42 witnesses and the written submissions from 127
40
minority, women, local, and other business representatives. The City subsequently
held another 10 public hearings, commissioned two statistical studies, and sought
additional written submissions from the public.
When the 1989 Ordinance expired and the City was considering adopting a
new version, it held an additional 14 public hearings, considered the live testimony
of 254 witnesses, videotaped testimony of numerous other witnesses, additional
statistical disparity studies, and other documentary evidence pertinent to alleged
discrimination and bidding irregularities. The City also heard direct evidence
concerning racial discrimination by City employees.
When the 1998 Ordinance expired and the City was considering adopting
the version of the Ordinance challenged here, it conducted additional public
hearings at which 134 individuals testified. It heard additional direct evidence of
ongoing discrimination in the contracting process and also heard evidence that
prime contractors tried to circumvent compliance with the Ordinance. An
additional disparity analysis was conducted, and the City‟s Human Rights
Commission wrote a report containing additional examples of discrimination in
the process. Only after these efforts were completed did the Board of Supervisors
make extensive legislative findings, including that the paucity of City contracts
going to minority- and women-owned businesses was due to discrimination by the
City and discrimination in the private sector, that the City was actively
discriminating against women and minority groups in its contracting and passively
participating in private sector discrimination, that the City‟s contracting practices
were in violation of federal law, and that the Ordinance was required to remedy
the discrimination against minority- and women-owned businesses.
As Justice Kennedy noted in Croson, “evidence which would support a
judicial finding of intentional discrimination may suffice also to justify remedial
legislative action, for it diminishes the constitutional responsibilities of the
41
political branches to say they must wait to act until ordered to do so by a court.”
(Croson, supra, 488 U.S. at p. 519, italics added (conc. opn. of Kennedy, J.).)
Questions such as whether “a race- and gender-conscious remedy is . . . the most
likely means of rectifying” injury from past discrimination (maj. opn., ante, at
p. 28) require an assessment of complex historical and socioeconomic data, and a
government entity‟s answer to such questions, if methodologically sound and
supported by substantial evidence, should not be lightly overturned by a reviewing
court.
IV.
The City also argues the Ordinance is required to maintain the eligibility for
funding it receives from various federal agencies, including the United States
Department of Transportation. If the City is correct, the Ordinance is
unquestionably exempt from section 31.37 The majority rejects the City‟s
argument and affirms the granting of plaintiffs‟ summary judgment motion. (Maj.
opn., ante, at pp. 20-24.) I disagree and would remand for further proceedings.
As the majority explains (maj. opn., ante, at p. 22), title VI of the Civil
Rights Act of 1964 (42 U.S.C. § 2000d) provides that “[n]o person in the United
States shall, on the ground of race, color, or national origin, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination under
any program or activity receiving Federal financial assistance.” Title VI also
authorizes federal agencies that provide funding to issue regulations implementing
its requirements. (42 U.S.C. § 2000d-1.) To that end, the Department of
Transportation issued a regulation providing that, “Where prior discriminatory
37
Section 31, subdivision (e) exempts actions “which must be taken to
establish or maintain eligibility for any federal program, where ineligibility would
result in a loss of federal funds to the State.”
42
practice or usage tends, on the grounds of race . . . to exclude individuals from
participation in, to deny them the benefits of, or to subject them to discrimination
under any program or activity . . . , the applicant or recipient must take affirmative
action to remove or overcome the effects of the prior discriminatory practice or
usage. Even in the absence of prior discriminatory practice or usage, a recipient
. . . is expected to take affirmative action to assure that no person is excluded from
participation in or denied the benefits of the program or activity on the grounds of
race . . . .” (49 C.F.R. § 21.5 (b)(7) (2009), italics added.) The regulation further
makes clear that race-conscious measures do not constitute prohibited
discrimination “if the purpose and effect are to remove or overcome the
consequences of practices or impediments which have restricted the availability
of, or participation in, the program or activity . . . .” (Ibid.)
The majority concludes that the Department of Transportation regulation
permits, but does not require, funding recipients to use race-conscious measures to
remedy past discrimination, as “affirmative action,” as that term is meant in the
regulation, encompasses both race-conscious and race-neutral measures. (Maj.
opn., ante, at pp. 23-24.) Thus, the majority reasons, a recipient can remain
eligible for federal funding and comply with section 31 by using race-neutral
affirmative action to address racial discrimination. (Id. at p. 24.) I fully agree in
most instances.
The majority, however, fails to grapple with what happens if race-neutral
affirmative action is incapable of remedying the discrimination. For example, we
have recognized that, “Where the state or political subdivision has intentionally
discriminated, use of a race-conscious or race-specific remedy necessarily follows
as the only, or at least the most likely, means of rectifying the resulting injury.
[Citations.]” (Hi-Voltage, supra, 24 Cal.4th at p. 568, italics added.) Indeed, the
majority has concluded the City should have the opportunity to show whether
43
triable issues of fact exist as to whether the Constitution requires adoption of the
Ordinance because, among other things, “a race- and gender-conscious remedy is
necessary as the only, or at least the most likely, means of rectifying the
[discrimination.]” (Maj. opn., ante, at pp. 24, 27-28.)38 If the City is successful in
so demonstrating, it would be incongruous to conclude that the Constitution
requires a race-conscious remedy (because, in part, of the inadequacy of race-
neutral measures) but that the Department of Transportation‟s regulations do
not.39
Thus, in light of our decision to remand the matter for further consideration
of the federal compulsion issue, I would also remand this claim so the superior
court can consider if the City can show triable issues of fact exist as to whether it
is required to take race-conscious affirmative action to maintain its funding
eligibility because race-neutral measures are inadequate.
38
The majority states that its resolution of this claim would be unaffected
were the City to demonstrate the existence of purposeful discrimination on
remand. (Maj. opn., ante, at p. 21, fn. 14.) It reasons that, if the Ordinance is
required by the equal protection clause, the City‟s federal funding claim “has no
practical significance.” (Ibid.) Even assuming the majority is correct on this
point, if the Ordinance is only permitted, and not required, under the equal
protection clause, the City should have the opportunity to demonstrate race-neutral
measures will not suffice to comply with its obligations under federal regulations.
39
Funding recipients cannot be reasonably be required to employ ineffective
race-neutral measures, nor, indeed, would it appear that the use of fruitless
measures would satisfy entities‟ obligations under title VI and agencies‟
implementing regulations.
44
V.
Accordingly, I dissent from parts II.A and II.B of the majority‟s opinion. I
concur with part II.C of the majority‟s opinion and with its decision to remand the
matter for further proceedings.
MORENO, J.
45
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Coral Construction, Inc. v. City and County of San Francisco
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 149 Cal.App.4th 1218
Rehearing Granted
__________________________________________________________________________________
Opinion No. S152934
Date Filed: August 2, 2010
__________________________________________________________________________________
Court: Superior
County: San Francisco
Judge: James L. Warren
__________________________________________________________________________________
Attorneys for Appellant:
Dennis J. Herrera, City Attorney, Wayne K. Snodgrass, Danny Chou, Sherri Sokeland Kaiser and James M.
Emery, Deputy City Attorneys; Moscone, Emblidge & Quadra, G. Scott Emblidge, Rachel J. Sater, Robert
D. Sanford, Michael P. Brown; Meyers, Nave, Riback, Silver & Wilson, Mara E. Rosales, Joseph M. Quinn
and K. Scott Dickey for Defendants and Appellants.
Lewis, Feinberg, Lee, Renaker & Jackson, Bill Lann Lee, Vincent Cheng and Lindsay Nako for Council of
Asian American Business Associations, Association of Asian American Attorney and CPA Firms, Chinese
for Affirmative Action, Asian American Justice Center, Asian Law Caucus and Asian American Bar
Association of the Greater Bay Area as Amici Curiae on behalf of Defendants and Appellants.
Nancy Ramirez, Nicholas Espiritu; Sonnenschein Nath & Rosenthal, Christopher E. Prince, Shirin
Soleman, Demian L. Pay and Manuel Alvarez, Jr., for Mexican American Legal Defense and Educational
Fund as Amicus Curiae on behalf of Defendants and Appellants.
Bingham McCutchen, Michael Isaku Begert, Karen Lu, Rianne E. Nolan, Renee M. DuPree, Nancy M.
Wang, Elizabeth M. Hall; Sujal J. Shah; Lawyers‟ Committee for Civil Rights and Oren Sellstom for
Coalition for Economic Equity as Amicus Curiae on behalf of Defendants and Appellants.
Frank C. Newman International Human Rights Clinic and Constance de la Vega as Amici Curiae on behalf
of Defendants and Appellants.
__________________________________________________________________________________
Attorneys for Respondent:
Pacific Legal Foundation, John H. Findley, Sharon L. Browne, Alan W. Foutz and Paul J. Beard II for
Plaintiffs and Respondents.
Gordon M. Fauth, Jr., and Michael J. Meyer for Asian American Legal Foundation as Amicus Curiae on
behalf of Plaintiffs and Respondents.
Law Office of Anthony T. Caso and Anthony T. Caso for American Civil Rights Institute as Amicus Curiae
on behalf of Plaintiffs and Respondents.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Sherri Sokeland Kaiser
Deputy City Attorney
City Hall, Room 234
1 Dr. Carlton B. Goodlett Place
San Francisco, CA 94102-4682
(415) 554-4691
Sharon L. Browne
Pacific Legal Foundation
3900 Lennane Drive, Suite 200
Sacramento, CA 95834
(916) 419-7111
Petitions for review after the Court of Appeal affirmed in part and reversed in part a summary judgment in a civil action. This case presents the following issues: (1) Does article I, section 31 of the California Constitution, which prohibits government entities from discrimination or preference on the basis of race, sex, or color in public contracting, improperly disadvantage minority groups and violate equal protection principles by making it more difficult to enact legislation on their behalf? (See Washington v. Seattle School Dist. No. 1 (1982) 458 U.S. 457; Hunter v. Erickson (1969) 393 U.S. 385.) (2) Is section 31 preempted by the International Convention on the Elimination of Racial Discrimination? (3) Does an ordinance that provides certain advantages to minority- and female-owned business enterprises with respect to the award of city contracts fall within an exception to section 31 for actions required of a local governmental entity to maintain eligibility for federal funds?
Opinion Information
| Date: | Citation: | Docket Number: | Category: | Status: |
| Mon, 08/02/2010 | 50 Cal. 4th 315, 235 P.3d 947, 113 Cal. Rptr. 3d 279 | S152934 | Review - Civil Appeal | submitted/opinion due |
Parties
| 1 | Coral Construction, Inc. (Plaintiff and Respondent) Represented by Paul James Beard Pacific Legal Foundation 3900 Lennane Drive, Suite 200 Sacramento, CA |
| 2 | Coral Construction, Inc. (Plaintiff and Respondent) Represented by Sharon L. Browne Pacific Legal Foundation 3900 Lennane Drive, Suite 200 Sacramento, CA |
| 3 | Coral Construction, Inc. (Plaintiff and Respondent) Represented by Alan W. Foutz Pacific Legal Foundation 3900 Lennane Drive, Suite 200 Sacramento, CA |
| 4 | Coral Construction, Inc. (Plaintiff and Respondent) Represented by John H. Findley Pacific Legal Foundation 3900 Lennane Drive, Suite 200 Sacramento, CA |
| 5 | Schram Construction, Inc. (Plaintiff and Respondent) Represented by John H. Findley Pacific Legal Foundation 3900 Lennane Drive, Suite 200 Sacramento, CA |
| 6 | City & County of San Francisco (Defendant and Appellant) Represented by Danny Yeh Chou Office of the City Attorney 1390 Market Street, 7th Foor San Francisco, CA |
| 7 | City & County of San Francisco (Defendant and Appellant) Represented by George Scott Emblidge Moscone Emblidge & Quadra, LLP 220 Montgomery Street, Mills Tower #2100 San Francisco, CA |
| 8 | City & County of San Francisco (Defendant and Appellant) Represented by Dennis Jose Herrera City Attorney, City & County of San Francisco 1 Dr. Carlton B. Goodlett Place, #234 San Francisco, CA |
| 9 | City & County of San Francisco (Defendant and Appellant) Represented by Mara Elizabeth Rosales Rosales Law Partners LLP 220 Montgomery Street, Suite 2100 San Francisco, CA |
| 10 | City & County of San Francisco (Defendant and Appellant) Represented by Rachel Josephine Sater Moscone Emblidge et al., LLP 220 Montgomery Street, Suite 2100 San Francisco, CA |
| 11 | City & County of San Francisco (Defendant and Appellant) Represented by Wayne Kessler Snodgrass Office of the City Attorney 1 Dr. Carlton B. Goodlett Place, #234 San Francisco, CA |
| 12 | City & County of San Francisco (Defendant and Appellant) Represented by Sherri Sokeland Kaiser Office of the City Attorney 1 Dr. Carlton B. Goodlett Place, #234 San Francisco, CA |
| 13 | Martin, John L. (Defendant and Appellant) |
| 14 | Aceves, William Joseph (Amicus curiae) Represented by William Joseph Aceves California Western School of Law 225 Cedar Street San Diego, CA |
| 15 | American Civil Rights Institute (Amicus curiae) Represented by Anthony T. Caso Attorney at Law 8001 Folsom Boulevard, Suite 100 Sacramento, CA |
| 16 | Asian American Bar Association of the Greater Bay Area (Amicus curiae) Represented by Bill Lann Lee Lewis, Feinberg et al. 1330 Broadway, Suite 1800 Oakland, CA |
| 17 | Asian American Justice Center (Amicus curiae) Represented by Bill Lann Lee Lewis, Feinberg et al. 1330 Broadway, Suite 1800 Oakland, CA |
| 18 | Asian American Legal Foundation (Amicus curiae) Represented by Gordon Morris Fauth Attorney at Law 1801 Clement Avenue, Suite 101 Alameda, CA |
| 19 | Asian Law Caucus (Amicus curiae) Represented by Bill Lann Lee Lewis, Feinberg et al. 1330 Broadway, Suite 1800 Oakland, CA |
| 20 | Association of Asian American Attorney & CPA Firms (Amicus curiae) Represented by Bill Lann Lee Lewis, Feinberg et al. 1330 Broadway, Suite 1800 Oakland, CA |
| 21 | Chinese for Affirmative Action (Amicus curiae) Represented by Bill Lann Lee Lewis, Feinberg et al. 1330 Broadway, Suite 1800 Oakland, CA |
| 22 | Coalition for Economic Equity (Amicus curiae) Represented by Oren M. Sellstrom Lawyers Committee for Civil Rights 131 Steuart Street, Suite 400 San Francisco, CA |
| 23 | Coalition for Economic Equity (Amicus curiae) Represented by Sujal Jayendra Shah Attorney at Law 733 Amsterdam Avenue, Apt. 17-H New York, NY |
| 24 | Coalition for Economic Equity (Amicus curiae) Represented by Michael Isaku Begert Bingham McCutchen, LLP 3 Embarcadero Center, Suite 1800 San Francisco, CA |
| 25 | Council of Asian American Business Associations (Amicus curiae) Represented by Bill Lann Lee Lewis, Feinberg et al. 1330 Broadway, Suite 1800 Oakland, CA |
| 26 | Crooms, Lisa Ann (Amicus curiae) Represented by Lisa Ann Crooms Howard University School of Law 2900 Van Ness Street, N.W. Washington, DC |
| 27 | Delavega, Constance (Amicus curiae) Represented by Constance M. Delavega University of San Francisco Law Clinic 2130 Fulton Street San Francisco, CA |
| 28 | Donovan, Dolores Ann (Amicus curiae) Represented by Dolores Ann Donovan University of San Francisco School of Law 2130 Fulton Avenue San Francisco, CA |
| 29 | Equal Justice Society (Amicus curiae) Represented by Constance M. Delavega University of San Francisco Law Clinic 2130 Fulton Street San Francisco, CA |
| 30 | Human Rights Advocates (Amicus curiae) Represented by Constance M. Delavega University of San Francisco Law Clinic 2130 Fulton Street San Francisco, CA |
| 31 | Iglesias, Michael Timothy (Amicus curiae) Represented by Michael Timothy Iglesias University of San Francisco School of Law 2130 Fulton Street San Francisco, CA |
| 32 | Mexican American Legal Defense & Education Fund (Amicus curiae) Represented by Demian Lauren Pay Sonnenschein Nath et al. 525 Market Street, 26th Floor San Francisco, CA |
| 33 | Mexican American Legal Defense & Education Fund (Amicus curiae) Represented by Christophe Eric Prince Sonnenschein Nath et al. 601 S. Figueroa Street, Suite 1500 Los Angeles, CA |
| 34 | Mexican American Legal Defense & Education Fund (Amicus curiae) Represented by Nancy Anne Ramirez Mexican American Legal Defense & Education Fund 634 S. Spring Street, 11th Floor Los Angeles, CA |
| 35 | Minnesota Advocates for Human Rights (Amicus curiae) Represented by Constance M. Delavega University of San Francisco Law Clinic 2130 Fulton Street San Francisco, CA |
| 36 | National Law Center on Homelessness & Poverty (Amicus curiae) Represented by Constance M. Delavega University of San Francisco Law Clinic 2130 Fulton Street San Francisco, CA |
| 37 | Paust, Jordan Jeffry (Amicus curiae) Represented by Jordan Jeffry Paust University of Houston School of Law Houston, TX |
| 38 | Rights International (Amicus curiae) Represented by Constance M. Delavega University of San Francisco Law Clinic 2130 Fulton Street San Francisco, CA |
| 39 | Roht-Arriaza, Naomi (Amicus curiae) Represented by Naomi Roht-Arriaza Hastings College of Law 200 McAllister Street San Francisco, CA |
| 40 | Society of American Law Teachers (Amicus curiae) Represented by Constance M. Delavega University of San Francisco Law Clinic 2130 Fulton Street San Francisco, CA |
| 41 | Weissbrodt, David Samuel (Amicus curiae) Represented by David Samuel Weissbrodt University of Minnesota School of Law 2001 West 21st Street Minneapolis, MN |
| Opinion Authors | |
| Opinion | Justice Kathryn M. Werdegar |
| Concur | Justice Carol A. Corrigan |
| Dissent | Justice Carlos R. Moreno |
| Dockets | |
| May 25 2007 | Petition for review filed Coral Construction, Inc. and Schram Construction, Inc., plaintiffs and respondents by John H. Fidley, Pacific Legal foundation, retained. |
| May 25 2007 | Record requested |
| May 31 2007 | Received Court of Appeal record file jacket/briefs/accordian file |
| Jun 18 2007 | Received: Untimely Answer to Petition for Review City and County of San Francisco, Respondent Sherri S. Kaiser, Deputy City Attorney |
| Jun 19 2007 | Application for relief from default filed for late answer to petition for review. |
| Jun 22 2007 | Answer to petition for review filed with permission City and County of San Francisco, appellant Sherri S. Kaiser, Deputy City Attorney |
| Jun 29 2007 | Reply to answer to petition filed Coral Construction, Inc. and Schram Construction, Inc., plaintiffs and respondents John H. Findley, Counsel |
| Jul 13 2007 | Time extended to grant or deny review The time for granting or denying review in the above-entitled matter is hereby extended to and including August 23, 2007, or the date upon which review is either granted or denied. |
| Aug 22 2007 | Filed: Letter from Sherri S. Kaiser, Deputy City Attorney re: seeking additional guidance |
| Aug 22 2007 | Petition for review granted (civil case) Votes: George, C.J., Baxter, Werdegar, Chin, and Moreno, JJ. |
| Aug 28 2007 | Request for extension of time filed 28 day extension to October 19, 2007 to file opening brief on the merits |
| Aug 31 2007 | Filed: Letter re: Clarification of the issues. Coral Construction, Inc. and Schram Construction, Inc., plaintiffs and respondents John H. Fidley, Pacific Legal foundation, Counsel |
| Aug 31 2007 | Certification of interested entities or persons filed Coral Construction, Inc. and Schram Construction, Inc., plaintiffs and respondents John H. Fidley, Pacific Legal foundation, Counsel |
| Sep 4 2007 | Certification of interested entities or persons filed City & County of San Francisco, Sherri S. Kaiser, Counsel |
| Sep 5 2007 | Extension of time granted On application of respondent and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including October 19, 2007. |
| Sep 12 2007 | Issues ordered limited Pursuant to rule 8.516 of the California Rules of Court, the following issues are to be briefed and argued: "(1) Did the Court of Appeal properly remand the case to the trial court to determine in the first instance whether the ordinance was required by the federal equal protection clause as a narrowly tailored remedial program to remedy ongoing, pervasive discrimination in public contracting? (2) Does an ordinance that provides certain advantages to minority- and female-owned business enterprises with respect to the award of city contracts fall within an exception to section 31 for actions required of a local government entity to maintain eligibility for federal funds under the federal Civil Rights Act (42 U.S.C. ? 2000d)? (3) Does article I, section 31 of the California Constitution, which prohibits government entities from discrimination or preference on the basis of race, sex, or color in public contracting, improperly disadvantage minority groups and violate equal protection principles by making it more difficult to enact legislation on their behalf? (See Washington v. Seattle School Dist. No. 1 (1982) 458 U.S. 457; Hunter v. Erickson (1969) 393 U.S. 385.)" |
| Oct 19 2007 | Opening brief on the merits filed Coral Construction, Inc. and Schram Construction, Inc., plaintiffs and respondents John H. Findley, Counsel |
| Oct 19 2007 | Request for judicial notice filed (granted case) Coral Construction, Inc. and Schram Construction, Inc., plaintiffs and respondents John H. Findley, Counsel |
| Oct 19 2007 | Received: Memorandum of points and authorities in Support of Request for Judicial Notice |
| Oct 19 2007 | Application filed to: Opening Brief and Rely brief City and County of San Francisco, defendants and respondents G. Scott Emblidge, Counsel |
| Oct 24 2007 | Opposition filed to San Francisco's application to file opening and reply brief. Coral Construction, Inc. et al., plaintiffs and respondents John H. Findley, Counsel |
| Oct 24 2007 | Opening brief on the merits filed with permission. City and County of San Francisco, defendants and respondents Dennis J. Herrera, Counsel |
| Oct 31 2007 | Request for extension of time filed 30 day extension to December 19, 2007, for appellant and respondents to file the answer brief on the merits. |
| Nov 5 2007 | Extension of time granted On application of appellant and respondents and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including December 19, 2007. |
| Dec 19 2007 | Answer brief on the merits filed City and County of San Francisco, defendants and respondents Sherri S. Kaiser, Counsel |
| Dec 19 2007 | Answer brief on the merits filed Coral Construction, Inc. and Schram Construction, Inc., plaintiffs and respondents John H. Findley, Counsel |
| Jan 8 2008 | Reply brief filed (case fully briefed) Opening Brief and Rely brief City and County of San Francisco, defendants and respondents G. Scott Emblidge, Counsel |
| Jan 8 2008 | Reply brief filed (case not yet fully briefed) Coral Construction, Inc. and Schram Construction, Inc., plaintiffs and respondents John H. Findley, Counsel |
| Feb 6 2008 | Received application to file Amicus Curiae Brief American Civil Rights Institute, in support of plaintiff and respondent Anthony Caso, counsel application & brief |
| Feb 6 2008 | Received application to file Amicus Curiae Brief Prof. Constance de la Vega, et al., in support of defendant and appellant City & County of San Francisco with brief |
| Feb 6 2008 | Received application to file Amicus Curiae Brief Asian American Legal Foundation, in support of plaintiffs & respondents Gordon Fauth, Jr., counsel with brief |
| Feb 7 2008 | Received application to file Amicus Curiae Brief Council of Asian American Business Associations, et al., in support of defendants and appellants Bill Lann Lee, counsel application & brief |
| Feb 7 2008 | Received application to file Amicus Curiae Brief Mexican American Legal Defense and Educational Fund, in support of defendants and appellants Nancy Ramirez, Christopher Prince, Demian Pay, counsel application, brief and request for judicial notice |
| Feb 7 2008 | Received application to file Amicus Curiae Brief Coalition for Economic Equity, in support of defendant and appellant Michael Begert, Sujal Shah, Oren Sellstrom, counsel with brief & appendix |
| Feb 19 2008 | Request for judicial notice filed (granted case) Mexican American Legal Defense Fund |
| Feb 19 2008 | Permission to file amicus curiae brief granted The application of Asian American Legal Foundation for permission to file an amicus curiae brief in support of defendants and appellants is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Feb 19 2008 | Amicus curiae brief filed Asian American Legal Foundation, in support of defendants and appellants Gordon Fauth, Jr., counsel |
| Feb 19 2008 | Permission to file amicus curiae brief granted The application of Professor Constance de la Vega, et al., for permission to file an amicus curiae brief in support of defendants and appellants is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Feb 19 2008 | Amicus curiae brief filed Professor Constance de la Vega, et al., in support of defendants and appellants Constance de la Vega, counsel |
| Feb 19 2008 | Permission to file amicus curiae brief granted The application of Council of Asian American Business Associations, et al., for permission to file an amicus curiae brief in support of defendants and appellants is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Feb 19 2008 | Amicus curiae brief filed Council of Asian American Business Associations, et al., in support of defendants and appellants Bill Lann Lee, counsel |
| Feb 19 2008 | Permission to file amicus curiae brief granted The application of Mexican American Legal Defense and Education Fund for permission to file an amicus curiae brief in support of defendants and appellants is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Feb 19 2008 | Amicus curiae brief filed Mexican American Legal Defense and Education Fund, in support of defendants and appellants Nancy Ramirez, Demian Pay, Christopher Prince, counsel |
| Feb 19 2008 | Permission to file amicus curiae brief granted The application of Coalition for Economic Equity for permission to file an amicus curiae brief in support of defendants and appellants is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Feb 19 2008 | Amicus curiae brief filed Coalition for Economic Equity, in support of defendants and appellants Michael Begert, Oren Sellstrom, Sujal Shah, counsel one volume of appendix presented in conjunction with the brief |
| Feb 19 2008 | Permission to file amicus curiae brief granted The application of American Civil Rights Institute for permission to file an amicus curiae brief in support of plaintiff and respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Feb 19 2008 | Amicus curiae brief filed American Civil Rights Institute, in support of plaintiff and respondent Anthony Caso, counsel |
| Mar 7 2008 | Response to amicus curiae brief filed Coral Construction and Schram Construction, respondents John Findley, counsel Response to all amicus briefs |
| Aug 28 2008 | Change of contact information filed for: Mara Rosales, counsel for appellants |
| Nov 17 2008 | Received: Letter, dated 11-14-08, citing additional opinion Coral Construction et al., respondents |
| Feb 4 2009 | Association of attorneys filed for: Coral Construction, Schram Construction, respondents Alan Foutz of Pacific Legal Foundation |
| Mar 18 2009 | Supplemental briefing ordered The court requests the Attorney General to file a brief directed to the following two questions: (1) Does article I, section 31 of the California Constitution, which prohibits government entities from discriminating against, or granting preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in public contracting, violate federal equal protection principles by making it more difficult to enact legislation on behalf of minority groups? (See Washington v. Seattle School Dist. No. 1 (1982) 458 U.S. 457; Hunter v. Erickson (1969) 393 U.S. 385.) (2) If yes, is section 31 narrowly tailored to serve a compelling governmental interest? The Attorney General may serve and file a letter brief on or before April 17, 2009. Plaintiffs and defendants may simultaneously serve and file letter briefs in response within 15 days after the filing of the Attorney General's brief. |
| Apr 17 2009 | Request for extension of time filed to file supplemental letter brief of Attorney General Edmund G. Brown Jr., submitted by Deputy A.G. Antonette Cordero. extension requested to 4-22-09. |
| Apr 21 2009 | Extension of time granted On application of the Attorney General and good cause appearing, it is ordered that the time to serve and file the supplemental brief is hereby extended to and including April 22, 2009. |
| Apr 22 2009 | Supplemental brief filed Information only: Attorney General of CaliforniaAttorney: Antonette Benita Cordero |
| Apr 29 2009 | Received: Letter from John W. Templeton, non-party |
| May 7 2009 | Supplemental brief filed Plaintiff and Respondent: Coral Construction, Inc.Attorney: Sharon L. Browne Plaintiff and Respondent: Schram Construction, Inc. Response to brief of A.G. |
| May 7 2009 | Request for judicial notice filed (Grant or AA case) Coral Const., Schram Const., respondents Sharon Browne, Counsel |
| May 7 2009 | Received: Application to file letter brief in response to brief of A.G. (response attached) American Civil Rights Institute and Center for Equal Opportunity, amici curiae Anthony Caso, counsel **The Court has declined to permit filing of this letter brief** |
| May 7 2009 | Supplemental brief filed Defendant and Appellant: City & County of San FranciscoAttorney: Sherri Sokeland Kaiser |
| Mar 30 2010 | Case ordered on calendar to be argued on Tuesday, May 4, 2010, at 9:00 a.m., in San Francisco |
| Apr 6 2010 | Note: Mail returned and re-sent resent to address available on State Bar website. Party tab updated as follows: old firm: Moscone Emblidge et al., LLP new firm: Moscone Emblidge & Quadra LLP old address 1: 180 Montgomery Street, Suite 1240 new address 1: 220 Montgomery Street, Mills Tower #2100 old zip ext: 4238 old phone: (415) 362-3599 new phone: (415) 362-3591 |
| Apr 26 2010 | Change of contact information filed for: resent to address available on State Bar website. Party tab updated as follows: Sujal Jayendra Shah old firm: Columbia Law School new firm: Attorney at Law old address 1: 435 West 116th Street new address 1: 733 Amsterdam Avenue, Apt. 17-H old zip: 10024 new zip: 10025 |
| Apr 28 2010 | Letter sent to: each non-amicus party counsel appearing at oral argument, from the Clerk of the Court: "The court has asked me to inform counsel in cases that will be argued at the May 3-6, 2010, oral argument calendar in San Francisco that Justice Joyce L. Kennard will be unable to be present at argument due to unexpected surgery. Upon stipulation of all parties in a case, Justice Kennard will participate in the deliberations and decision in this matter by reviewing the complete videotape recording of the argument and considering all of the written materials in each case. In the absence of the court's receipt of a written stipulation by all parties in a case, the court will decide whether to continue the matter to a future oral argument calendar or to ask the Chief Justice to assign a justice pro tempore who will participate in place of Justice Kennard at the May 3-6, 2010, sessions. "Please telephonically inform Steve Rockwell, Senior Deputy Clerk, at (415) 865-7011 as soon as possible whether the party(ies) you represent will or will not stipulate to Justice Kennard's participation in the case, even though she will not be present at oral argument. Please execute the attached written stipulation and returning it by fax on or before Friday, April 30, 2010. Submit the original signed stipulation to the court either by overnight mail or by bringing the document to the court on the day of argument." |
| Apr 28 2010 | Stipulation filed Stipulation by counsel Sharon L. Browne, that respondent has no objection to Justice Kennard's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument. |
| Apr 30 2010 | Stipulation filed Stipulation by counsel Sherri Sokeland Kaiser, that appellants have no objection to Justice Kennard's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument. |
| May 4 2010 | Cause argued and submitted |
| Jul 2 2010 | Change of contact information filed for: Mara E. Rosales, counsel for appellants City and County of San Francisco, San Francisco Public Utilities. |
| Jul 30 2010 | Notice of forthcoming opinion posted To be filed on Monday, August 2, 2010. |
| Briefs | |
| Oct 19 2007 | Opening brief on the merits filed |
| Oct 24 2007 | Opening brief on the merits filed |
| Dec 19 2007 | Answer brief on the merits filed |
| Dec 19 2007 | Answer brief on the merits filed |
| Jan 8 2008 | Reply brief filed (case fully briefed) |
| Jan 8 2008 | Reply brief filed (case not yet fully briefed) |
| Feb 19 2008 | Amicus curiae brief filed |
| Feb 19 2008 | Amicus curiae brief filed |
| Feb 19 2008 | Amicus curiae brief filed |
| Feb 19 2008 | Amicus curiae brief filed |
| Feb 19 2008 | Amicus curiae brief filed |
| Feb 19 2008 | Amicus curiae brief filed |
| Mar 7 2008 | Response to amicus curiae brief filed |
| Dec 29, 2010 Annotated by lfong | FACTS The City and County of San Francisco adopted an ordinance to preferentially award public contracts to minority-owned business enterprises and women-owned business enterprises 26 years ago. Since then, the ordinance has been amended to respond to various judicial decisions. Plaintiffs Coral Construction, Inc. and Schram Construction, Inc. challenged the 2003 version of the ordinance, arguing that the ordinance violated Article I, section 31 of the California Constitution, which was adopted by referendum under Proposition 209 in November 1996. This section forbids a city awarding public contracts to discriminate or grant preferential treatment based on race or gender. The City and County of San Francisco moved for summary judgment under the theory that that Article I, section 31 violates the political structure doctrine. The City also defended under the theories that 1) the 2003 ordinance is unaffected by section 31 because the ordinance falls within the federal funding exception set out in subdivision (e); and 2) that the federal Equal Protection Clause requires the 2003 ordinance as a remedy for the City’s own discrimination. PROCEDURAL HISTORY The Superior Court held that the 2003 ordinance violated section 31 and granted plaintiffs’ motion for summary judgment, issuing a permanent injunction prohibiting the City from enforcing the 2003 ordinance or any similar program in the future. It also held that section 31 did not violate the political structure doctrine. The Court of Appeal affirmed in part, reversed in part, and remanded for adjudication of the City’s claim that the federal Equal Protection Clause required the ordinance. ISSUES 1) Does Article I, section 31 of the California Constitution, which forbids a city awarding public contracts to discriminate or grant preferential treatment based on race or gender, violate the political structure doctrine? Specifically, does Proposition 209’s requirement for a two-thirds majority in order to amend it create a structural hurdle for minorities in violation of the political structure doctrine? HOLDING (Werdegar, J., joined by George, C.J., Kennard, J., Baxter, J., Chin, J., and Corrigan, J.) 1) Political Structure Doctrine: Article I, section 31, which prohibits race and gender preferences in public contracts, does not violate political structure doctrine 2) Federal Funding Exception: No, the City ordinance does not fall within the federal funding exception. Environmental and transportation protection affirmative action regulations did not require the City to pass an ordinance establishing race-and gender-based remedies in order to receive federal funding. 3) Federal Compulsion Claim: ANALYSIS 1) Political Structure Doctrine: The political structure doctrine, a judicial interpretation of the Fourteenth Amendment’s Equal Protection Clause, establishes that the government cannot create a legislative structural hurdle to impede minorities’ ability to attain equal treatment. Section 31 does not violate the political structure doctrine because while the Equal Protection Clause allows narrowly tailored race-or-gender-based preferential treatment exceeding the scope of equal treatment that furthers a compelling state interest, the clause does not require such preferential treatment. See Washington v. Seattle School Dist. No. 1, 458 U.S. 457 (1982); Hunter v. Erickson, 393 U.S. 385 (1969). 2) Federal Funding Exception: The ordinance does not fall within the federal funding exception because environmental and transportation federal regulations did not require racial preferences. (See 40 C.F.R. § 7.35(a)(7)(2010) [environmental protection]; 49 C.F.R. § 21.5(b)(7)(2009) [transportation].) While both regulations use the term “affirmative action,” the term is left undefined, evidencing no intent to require racial preferences. The environmental protection regulation requires provision of remedial affirmative action only for specific individuals “who have been injured by the discrimination.” 40 C.F.R. § 7.35(a)(7)(2010). It cannot be understood to mandate an ordinance like the City’s, which confers benefits on bidders based on race or gender without regard to specific instances of past discrimination. The transportation regulation permits, but does not require, race-based remedies so long as no other law precludes them. 49 C.F.R. § 21.5(b)(7)(2009). 3) Federal Compulsion Claim: In order to overcome the plaintiff’s motion for summary judgment on remand, the City must show that 1) the City has purposefully or intentionally discriminated against minority business enterprises and women business enterprises; 2) that the purpose of the City’s 2003 ordinance is to provide a remedy for such discrimination; 3) that the ordinance is narrowly tailored to achieve that purpose and 4) that a race-and gender-conscious remedy is necessary as the only, or at least the most likely, means of rectifying the resulting injury. CONCURRENCE (Corrigan, J.) In addition to concurring in full in the majority opinion, Judge Corrigan set out an alternative ground for distinguishing the political structure cases from the case at bar. In particular, the concurrence highlights that Article I, section 31 does not implicate the political structure doctrine because it does not single out racial issues or racially oriented legislation for special treatment but applies broadly to discrimination and preferential treatment. In contrast, true political structure cases like Seattle burden minority interests by making minority groups politically powerless, for example, by producing narrowly focused anti-busing legislation that “remov[es] the authority to address a racial problem.” 458 U.S. at 474. The opinion also suggested that Equal Protection doctrine has changed since the Seattle case, and that the political structure doctrine should be revisited by the Supreme Court. C.f. Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701 (2007) (the desegregation programs “carefully guarded” in Seattle are presumptively unconstitutional). CONCURRENCE AND DISSENT (Moreno, J.): 1) Political Structure Doctrine Section 31 violates the political structure doctrine because it singles out a racial issue for special treatment by distinguishing groups seeking beneficial legislation on the basis of race and sex and those seeking beneficial legislation on all other bases. Though section 31 is facially neutral, the impact of the law falls on the minority. Section 31 alters the political process in a nonneutral way by creating a “new and formidable barrier” to those seeking race-and-gender-based affirmative action programs. The two-third majority requirement to amend the law creates a substantial hurdle for racial minorities and women seeking remedial legislation, relocating decisionmaking authority to the state Constitution. 2) Federal Funding Exception 3) Federal Compulsion Claim TAGS: local government law; political structure doctrine; equal protection; federal equal protection; federal funding exception; federal compulsion; affirmative action; preferential treatment KEY CASES: |
