Caltrans' plan to set racial and gender quotas in federally funded road and highway contracts violates the state and federal constitutions, a federal lawsuit filed Thursday claims.
Recent changes to the department's Disadvantaged Business Enterprise program require that 6.75 percent of federally funded state road and highway contracts be awarded in a "race-conscious" manner. That encompasses small businesses owned by women as well as African-Americans, American Indians or Asian/Pacific Islander-Americans; it doesn't include businesses owned by white, Latino or certain other Asian-American men.
This policy, according to the lawsuit filed in Sacramento by the Pacific Legal Foundation on behalf of the Associated General Contractors of America's San Diego Chapter, runs afoul of the state constitution as amended by Proposition 209 of 1996, which bars public institutions from considering race, sex or ethnicity in education, employment or contracting. It also violates the U.S. Constitution's 14th Amendment because there is no evidence of discrimination by Caltrans to justify a race-conscious remedy, the suit claims.
"Contracts should be awarded to the lowest responsible bidder and not by bureaucratic fiat," Pacific Legal Foundation principal attorney Sharon Browne told reporters during a conference call, adding there's "no evidence to suggest Caltrans will lose federal dollars if it treats all contractors equally."
Caltrans' DBE program dropped its race-conscious component in 2006 to comply with a federal appeals court precedent requiring a showing of discrimination against minority-owned contracting firms. In February, the U.S. Department of Transportation approved Caltrans' reinstatement of the quota, noting that in light of the new economic stimulus funding about to become available for California transportation projects, Caltrans needed to reverse its more than 50 percent decline in DBE participation in federal contracts since 2005.
But this suit's plaintiffs note that case law says a federal bureaucrat's OK doesn't shield the state from judicial scrutiny.
Although not a party to the lawsuit, former University of California Regent Ward Connerly — Proposition 209's proponent, who since has backed similar measures in Florida, Michigan, Colorado and Nebraska — praised the suit during the foundation's conference call.
"We have to fight this thing case by case and agency by agency," he said of racial and gender preferences in public contracting, blasting Caltrans for being "preoccupied with building diversity rather than with building the products the taxpayers want."
Caltrans spokesman Mark DeSio said Thursday afternoon that the agency hadn't yet seen it and wouldn't comment. He noted, however, that the Federal Highway Administration supports Caltrans' action in trying to boost DBE participation.