12/05/00 3:40 p.m.
Hi-Voltage Shocks the Left
A golden blow to preference advocates in California.

By Roger Clegg, general counsel of the Center for Equal Opportunity in Washington, D.C. He coauthored an amicus brief in the Hi-Voltage case on behalf of Glynn Custred and Tom Wood, the two authors of Proposition 209.

n November 30, the supreme court of California struck down the City of San Jose's municipal contracting program as illegal discrimination on the basis of race, ethnicity, and sex. Every justice on the court agreed that the program violated Proposition 209, the 1996 ballot initiative that banned preferential treatment by the government in contracting, employment, and education.

This decision — Hi-Voltage Wire Works, Inc. v. City of San Jose — is significant for a number of reasons. Affirmative action that involves preferences based on race, ethnicity, and sex has become more and more tenuous, both legally and politically. As a consequence, its proponents have been forced to reconfigure this discrimination in ways that they hope will be found legally and politically more palatable. The City of San Jose's program was typical in this regard, and its decisive rejection by the highest court in our most populous state is important.

As Linda Chavez, president of the Center for Equal Opportunity, stated in applauding the court's decision: "The justices have decisively rejected the efforts of those who would twist the words of Proposition 209 to allow the discrimination it clearly and properly bans," she said. Chavez likewise expressed her hope that the ruling will forestall future attempts to circumvent Proposition 209.

Some background: The intermediate appellate court correctly described the City of San Jose's challenged contracting scheme as "a municipal program designed to increase participation by minority and women businesses [MBE/WBEs] in public construction projects." The Orwellian-named "Office of Equality Assurance" requires bidders on city construction requirements to do one of the following: (1) send "solicitation letters" to four MBE/WBEs for each trade area identified in the project, follow up on the letters by contacting the MBE/WBEs, and negotiate in good faith and not "unjustifiably" reject an MBE/WBE bid; or (2) list a sufficient number of MBE/WBE participants in the bid.

Of course, it could not be seriously argued that San Jose's scheme involved no discrimination or preference. Special efforts had to be made to include some subcontractors (defined by race, ethnicity, and sex), and those efforts need not have been made for other subcontractors. This is a government classification made on impermissible grounds with the purpose and effect of increasing the percentage of subcontractors with certain melanin content, ancestry, and reproductive organs.

Suppose the shoe were on the other foot. Suppose that the Office of Equality Assurance announced that it was going to require that special efforts be made to ensure that white-male-owned companies received solicitation letters and follow-ups and were not "unjustifiably" rejected, or that a set number of them were listed as participating in the bid, and that no similar guarantees were made for non–white-male-owned companies. Imagine the outcry, and imagine the derisive laughter, if the OEA tried to maintain with a straight face that there was no discrimination or preference in this scheme.

Here is what was intended to happen under the city's scheme. There are two potential subcontractors, identical in every way except that one is an approved MBE/WBE and the other is not. The approved MBE/WBE will, because of the challenged program, receive a solicitation letter. For the other company, the mailbox is empty. The approved MBE/WBE will receive a follow-up phone call. For the other company, the phone never rings. The approved MBE/WBE's bid cannot be "unjustifiably rejected." The other company receives no such special assurance.

As the trial court noted: "The former will have the benefit of receiving solicitation and personal contact from the general contractors, who will be encouraging them to participate in the bid, while the latter will be forced to ultimately search out job openings." When some individuals receive different legal protections than others, that is literally to "deny…the equal protection of the laws," in violation not only of Proposition 209 but also the Equal Protection Clause of the U.S. Constitution.

As to the scheme's second prong, it set — to quote the plan itself — "the percentage of the MBE firms and the WBE firms that would be expected to be included in the Base Bid amount of any contract in the absence of discrimination." This cannot be characterized as anything but a quota. And even if it could be calculated in the aggregate what such figure "would be expected to be" absent discrimination — a dubious assumption, since there are an almost infinite number of variables, including but not limited to the history, interests, background, qualifications, and inclinations of dozens of demographic groups and subgroups and sub-subgroups — it will not be the same figure in every individual bid. Yet the city required it to be so for purposes of its scheme.

It is very satisfying that the disingenuous arguments made in an attempt to circumvent the will of Californians were so decisively rejected. Indeed, they had earlier been rejected by an unlikely hero in this struggle. On July 28, 1999, Democratic governor Gray Davis vetoed California Senate Bill 44, which endorsed San Jose's sort of targeted outreach — in the education and employment context — on the grounds that it would violate Proposition 209. He did so even though he had opposed Proposition 209, because he concluded that the people had spoken.

Another aspect of the case that made its outcome so satisfying — and significant — is the fact that the civil-rights establishment pulled out all the stops in trying to defend the program. Briefs were filed by the NAACP Legal Defense and Educational Fund; the local chapters of the American Civil Liberties Union and the Lawyers' Committee for Civil Rights; the Mexican American Legal Defense and Educational Fund; Chinese for Affirmative Action; and a variety of other groups.

In addition, the left was able to marshal amicus support from a number of other California cities (including, no surprise, San Francisco and Berkeley) and even the state's attorney general, Bill Lockyer — who, unlike the governor, apparently felt no duty to defend the language and intent of a provision in his state's constitution expressing the direct will of his state's citizens.

Even more disturbing was a brief filed by the Clinton administration, arguing that Proposition 209 shouldn't be interpreted to mean what it says because federal law requires discrimination on the basis of race, ethnicity, and sex.

Since George W. Bush is likely to appoint good judges, but a Bush administration is unlikely to play an aggressive role himself in attacking preferences itself, the courts and state referenda are the likely battlegrounds in this area for the next few years. The Hi-Voltage decision is good news on both fronts.