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California Law Declared Unconstitutional

Wed November 29, 2000 - Northeast Edition
Construction Equipment Guide

California’s highest court declared unconstitutional a San Jose law requiring government contractors to solicit bids from companies owned by women and minorities.

By a 7-0 vote, the state Supreme Court upheld a lower court decision that previously overturned the city ordinance, saying it violates Proposition 209, a 1996 California initiative that banned state-funded affirmative action programs.

Approved by 54 percent of voters, the initiative prohibits preferences in state and local contracting, employment and education.

Although it does not define "preferences," the measure’s sponsors sought to abolish quotas, set-asides and other allowances that give groups advantages in selection.

Under the city law, San Jose required that on city contracts over $50,000, construction contractors who need subcontractors contact at least four companies owned by women or minorities. They were required to negotiate with the potential subcontractors and either accept their bids or state legitimate reasons for rejection.

The law was challenged by Hi-Voltage Works, a company whose bid on a contracting job for a San Jose sewage treatment plant in 1997 was rejected because the company did not reach out to minority or female subcontractors to help with the job.

Attorney General Bill Lockyer, who defended the San Jose ordinance, has said the decision could eliminate scores of so-called outreach programs run by local governments statewide.

Justice Janice Rogers Brown, the court’s sole black member, wrote the 40-page majority opinion, that also included a history of civil rights legislation in the United States.

"It is clear the voters (who approved Proposition 209) intended to ... prohibit the kind of preferential treatment accorded by this program,"she wrote.

But in a concurring and dissenting opinion, Chief Justice Ronald M. George, criticized Brown’s discussion for not distinguishing between discriminatory racial policies and race-conscious affirmative action programs that try to break down the continuing effects of segregation.

Stephen Barnett, a law professor at the University of California at Berkeley, called Brown’s opinion ”gratuitously and unnecessarily political.’

"For the court to appear to be taking sides politically damages the credibility of the court,’ Barnett said.

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