Flying in the face of state law prohibiting affirmative action, the Board of Supervisors voted unanimously Tuesday to extend and expand a program giving preference to women and minorities in city contracting.
The board gave the city's contracting program, which is set to expire at the end of October, new life by extending it until 2003 and including Native Americans and Arab Americans under the protections for women, blacks, Latinos, Asian Americans and Pacific Islanders.
"This legislation is not about preferences," said Supervisor Amos Brown, chief sponsor of the controversial ordinance. "It is not about quotas . . . giving anyone anything they don't deserve in a just society. This legislation is about inclusion. We discovered based on disparity studies that a lot of people are being excluded from getting contracts in this city."
In fact, the rapidly approved ordinance says that 65% of all city departments are headed by white men and that many "continue to operate under an 'old boys' network' dominated by Caucasian males."
Such a system "creates a barrier to the entry of women- and minority-owned businesses and puts those firms at a competitive disadvantage in their efforts to secure city contracts," the ordinance continues.
Proponents of Proposition 209, the statewide ballot measure passed overwhelmingly in 1996 to prohibit racial and gender preferences, called San Francisco's action an "in-your-face move" and blatantly "irresponsible," and vowed to take the city to court to block its program.
"By doing this, the city is essentially saying it doesn't matter to us what the people of California voted," said Ward Connerly, a driving force behind Proposition 209. "I've heard some of the elected officials--especially the mayor--who took great pride in the fact that San Francisco is going to go its own way."
San Francisco often does go its own way, and has bucked state and federal law in the past--in particular over the legality and availability of marijuana for medicinal use. Earlier this year, in a confrontation with the state attorney general and the U.S. attorney, officials vowed to distribute marijuana themselves if marijuana clubs were shut down.
Local officials point out that this liberal enclave led the state in opposition to Proposition 209, with 66% voting against it. After the state approved the measure 55% to 45%, San Francisco Mayor Willie Brown said that his city should secede from this "wacko" state, according to local newspaper reports.
The mayor was heading to China on Tuesday and was unavailable for comment. But spokesman Ron Vinson reiterated Brown's "support [for] anything that would expand opportunity" for women, minorities, gays and lesbians. "The mayor definitely supports the concept of this legislation," Vinson said.
State Sen. Quentin L. Kopp (I-San Francisco), honorary co-chairman of the Proposition 209 effort and a former supervisor here, derided the board, calling its action "profiles in fear" and saying that "there isn't a one of them who has the guts to vote no on an ordinance that on its face violates the California Constitution and the citizen Proposition 209."
But Supervisor Michael Yaki argued that San Francisco's carefully crafted ordinance has been "narrowly tailored . . . to remedy past discrimination," which is the major U.S. Supreme Court test for such a measure.
"We don't believe that 209 applies to programs established under the 14th Amendment to combat race and sex discrimination," Yaki said after the vote. "We believe we have a separate duty . . . to remedy past discrimination."
In 1984, San Francisco passed its first ordinance to combat discrimination in city contracting for goods and services and in the private sector. At the time, virtually no businesses owned by women or minorities were prime contractors with the city.
The ordinance was broadened in 1989, was challenged in federal court and was upheld on appeal. Since then, the city has "actively and extensively documented and studied discrimination against and disadvantages faced by these groups to gauge the effectiveness" of its efforts.
One study of data on city contracts from 1992 to 1995 found "underutilization of several minority groups and women businesses and found statistical evidence of discrimination," according to the city's legislative analyst. A later study showed "underutilization of most groups."
Anecdotal evidence in the earlier study pointed to a particular lack of city contracts going to Native Americans and Arab Americans, the latter having "experienced discrimination as a result of Middle East conflicts."
"According to the Arab American Institute, San Francisco would be the only city which has included Arab Americans within minority business programs," the legislative analyst's report said.
It is these studies--along with 14 hearings, live testimony by 254 witnesses and a slew of videotaped oral histories--that the city argues will protect it from legal assault, by addressing specific wrongs rather than creating blanket protections for broad groups who may or may not have been harmed.
The supervisors note that minority- and woman-owned businesses are often smaller than mainstream companies and as a result tend to submit higher bids for city contracts, causing them to be noncompetitive. The ordinance requires city departments that contract for goods and services to "discount" bids by up to 10% for firms that have at least 51% ownership by a protected group.
Such assertions carry little weight with the backers of Proposition 209, who single out Brown for creating what they consider a political climate that fosters law-breaking.
The ordinance "is a clear violation of Proposition 209," said Lance Izumi, a senior fellow in California studies at the conservative Pacific Research Institute, a public policy research organization based in San Francisco.
"The courts have said that no matter what the best of intentions of local governments are, the law under Proposition 209 is very clear," Izumi said. "You cannot discriminate between people based on race or gender. . . . Willie seems to think he's above the law."
Even before the ordinance passed, Kopp was approached by Connerly's American Civil Rights Institute to proceed with a lawsuit that would be filed subsequent to Tuesday's vote on behalf of an as-yet-unnamed plaintiff who has felt harmed by San Francisco's policies.
"We are going to pursue what we can legally do to challenge this," Connerly said. "We will not sleep at night until we can find someone to challenge this policy, because it is in clear violation of 209."
The ordinance must be voted on one more time by the board and be signed by the mayor. Both actions are considered pro forma.