Top court broadens Calif. affirmative action ban

In a landmark test of California's ban on affirmative action programs, the state's Supreme Court on Thursday struck down a city program encouraging outreach to women and minorities for public contracts.

The state Supreme Court said the San Jose, Calif., ordinance requiring firms bidding for city business to show they use minority and women subcontractors or have attempted to contract them for work was a clear violation of Proposition 209, the 1996 measure which ended affirmative action programs in the nation's most populous state.

The case marks the most thorough court review yet of the scope of Prop. 209, and could spell the end of thousands of programs aimed at boosting minority representation in the state's economic and academic arenas.

"If a contractor fails to satisfy either option, the City discriminates on the basis of race and sex by rejecting its bid out of hand even, as in this case, when the bid is the lowest," the court's majority opinion, by Justice Janice Brown, said. "This result is precisely what the voters were told Proposition 209 would prohibit."

Prop. 209, passed after a rancorous campaign, made California the first state in the nation to bar state and local government entities from granting preferential treatment based on race or sex in public employment, education or contracting.

Since then "outreach programs" like the one San Jose passed in 1997 have become common around California as government agencies and public universities seek ways to continue recruiting and retaining women and minority applicants.

Sharon Browne, a lawyer for the Pacific Legal Foundation, a Sacramento-based firm that represents conservative causes in court and served as plaintiff's lawyer in the case, said the decision could have wide-ranging impact around the state. DECISION SEEN AS NARROWLY CAST"It makes it really clear that any government program that uses race or sex violates Prop. 209," Browne said, saying some estimates calculate as many as 6,000 government agencies have such programs. "If the entities continue to have them in place, then it's a willful violation of the California constitution."

Supporters of the San Jose ordinance, which included state Attorney General Bill Lockyer and various civil rights groups, said they felt the court's ruling was narrowly cast and would not necessarily doom all race and sex-based outreach programs in the state.

"The state high court ruling is disappointing, but the opinion does conclude that there are lawful forms of outreach," said Sandra Michioku, a spokeswoman for Lockyer's office. "The challenge will be finding what is permissable."

Eva Paterson of the Lawyers' Committee for Civil Rights, which filed an amicus brief in the case, said she was sure the fight to maintain some form of affirmative action in California would continue.

"This does not mean the end," Paterson said. "But we still find it very disturbing. We think the court has gone too far too the right, and has lost its way."

The state Supreme Court decision Thursday upheld an earlier ruling by a state appeals court, which also found the San Jose program to be in violation of the 1996 law.

All seven of the state high court's justices agreed that the San Jose program was unconstitutional, but they wrote four separate opinions with varying reasoning. The court's Chief Justice Ronald George wrote a partial dissent taking issue with the majority's historical argument.

In arguments in September, lawyers for the plaintiff, an electrical firm called Hi-Voltage Wire Works, said the San Jose ordinance gave minority and women contractors unfair competitive advantage in one of the nation's most diverse states.

San Jose City Attorney Richard Doyle said the city was disappointed by the Supreme Court's ruling, but was determined to find a way to redress past discrimination against women and minority-owned business.

"The idea here is that given the incidence of past discrimination, which we have documented here in San Jose, we feel we have to do something," Doyle told Reuters. "We are going to have to go back to the drawing board and try to devise something that can past muster."

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