California Supreme Court debates ban on affirmative action in contracts

Reporting from San Francisco —  The California Supreme Court debated the constitutionality of Proposition 209 on Tuesday, questioning whether the reach of the 1996 ban on affirmative action in government should be limited.

During a hearing Tuesday, some members of the state high court appeared inclined to permit some type of affirmative action when needed to address deliberate and ongoing discrimination.

The court is reviewing a San Francisco ordinance that gives firms owned by women and minorities an advantage in city contracting. Although the U.S. 9th Circuit Court of Appeal upheld the constitutionality of Proposition 209 in 1997, the state high court is not bound by the circuit ruling.

Sharon L Browne, an attorney with the Pacific Legal Foundation, said the ordinance allows the kind of racial preferences that Proposition 209 was supposed to end. Browne argued there was no evidence of significant discrimination to support San Francisco’s law and contended that the ordinance itself gave preferences.

“When racial preference is being used, that is no longer equal treatment,” argued Browne, an attorney with the conservative public interest law group.

But Sherri Sokeland Kaiser, representing the city of San Francisco, countered that the ordinance was needed “to level the playing field” because of “ongoing discrimination by the city.” San Francisco contends the ban on preferences for women and minorities violates the U.S. Constitution.

Justice Ming W. Chin, one of the more conservative justices, appeared skeptical that discrimination in San Francisco was so prevalent that an exception to Proposition 209’s ban was warranted.

“So discrimination in San Francisco is much worse than any other part of the state?” Chin asked.

Kaiser said she did not know whether other cities discriminated as much as San Francisco. “It is certainly possible,” she said.

Justice Marvin R. Baxter appeared equally suspect. “Was any city official fired for intentional discrimination and if not, why not?” he asked.

Kaiser said the city must abide by confidentiality rules in employment, and the evidence in the case did not address such personnel matters.

The court’s other justices appeared willing to refer the case back to a trial court to determine whether deliberate, ongoing discrimination required San Francisco’s law.

It is a “factually intense” question, isn’t it? Chief Justice Ronald M. George asked.

Justices Kathryn Mickle Werdegar and Carlos R. Moreno noted that Proposition 209 treated minorities and women differently from other groups.

The court will rule within 90 days.

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