Tackling Proposition 209 for the first time in a decade, the California Supreme Court on Monday left intact the state's ban on affirmative action in public programs.
In a 6-1 ruling, the Supreme Court upheld the 1996 voter-approved law, in the process invalidating a 7-year-old San Francisco ordinance designed to aid minority- and women-owned businesses in the contracting process. The majority opinion, written by Justice Kathryn Mickle Werdegar, reinforced past state and federal court rulings that have kept Proposition 209's tight limits on public affirmative action programs in place across California.
The justices left open the possibility that San Francisco officials could still salvage the law in the trial court if they can prove it is the only possible way to fix entrenched discrimination in the city's contracting programs, but overall rejected San Francisco's argument that Proposition 209 is unconstitutional, the first time the state's high court has addressed that question directly. Justice Carlos Moreno dissented, concluding that laws such as San Francisco's should be permissible to correct discrimination, given the political difficulty of overturning or curtailing Proposition 209 at the ballot box.
San Francisco city lawyers say they believe the ruling chips away at Proposition 209 because it still gives them an opportunity to prove there is so much discrimination in the contracting process that affirmative action is allowed.
"This is the first case that blows a hole in 209," said Sherri Kaiser, San Francisco's lead attorney on the case. "Proposition 209 does not force governments to tolerate discrimination in their midst."
The case marked the first time the state Supreme Court has addressed Proposition 209 since a ruling in 2000, when the justices struck down a San Jose law requiring the city to conduct outreach to aid minority-owned businesses. In that case, the justices found the law violated Proposition 209, but did not deal with the broader constitutional questions that were raised in the San Francisco legal battle.
San Jose City Attorney Rick Doyle said San Jose officials have taken a conservative approach on any similar programs since that time. "The result doesn't surprise me," he said of the Supreme Court's latest ruling. "They read 209 very strictly."
A federal appeals court also upheld Proposition 209 after it was enacted by voters to bar affirmative action in state education, contracting and employment. Attorney General Jerry Brown argued in the San Francisco case that the affirmative action ban violates the federal constitution, joining San Francisco officials and civil rights groups in defense of the city ordinance.
Two white-owned contractors sued to overturn the San Francisco ordinance, backed by the Pacific Legal Foundation, a conservative group that defended Prop. 209 in the San Jose case. Lawyers challenging the ordinance say San Francisco will not be able to show its law can be justified under Proposition 209.
Sharon Browne, the foundation's principal attorney, called the Supreme Court ruling a "powerful victory for equal justice under law." She predicted San Francisco will fail in its effort to justify the need for its minority contracting ordinance.
Contact Howard Mintz at 408-286-0236.