California's Democratic leaders have reversed the state's legal position in a key affirmative action lawsuit by filing court papers that defend two programs containing special considerations for race or gender.
The programs, operated by the treasurer's office and the state lottery, encourage government contracts with women- and minority-owned businesses by establishing participation goals and outreach efforts.
"There are a lot of people of talent in this state and they come from all races and genders," said state Treasurer Phil Angelides. "Nothing is ever lost by letting new people of talent know about the services available in the state."
The court papers, filed earlier this month by Angelides and state Atty. Gen. Bill Lockyer--both Democrats--represent a sharp reversal from the state's legal posture under former Republican Gov. Pete Wilson. And they open a new battleground in the debate over diversity and affirmative action as Democrats who opposed Proposition 209 seek to limit its impact.
Wilson initiated the lawsuit nearly four years ago, largely as a vehicle for enforcing the 1996 ballot measure ending affirmative action in state government. He sought to close five state programs that contain special considerations for race and gender.
Lockyer and Angelides contend that programs with nonbinding participation goals or outreach efforts are not covered by Proposition 209. Their filing essentially asks the courts to sanction such practices.
They say the ballot measure is limited to programs with rigid quotas or requirements--like the former construction contracting law that directed 15% of state jobs to minority-owned firms and an additional 5% to women-owned firms. That program was rescinded after Proposition 209 and related court decisions took effect.
The authors of Proposition 209, which passed with 54% of the vote, have promised a vigorous challenge to Angelides and Lockyer's interpretation of the law. They contend that the measure requires a color-blind government policy void of any reference to race or gender, even for goal-setting or outreach.
"I think we have an attorney general in this case who is . . . diametrically opposed to what the voters said," asserted Ward Connerly, chairman of the Proposition 209 campaign.
Gov. Gray Davis, a Democrat who opposed Proposition 209, has not taken a position on the matter.
Davis inherited Wilson's role as plaintiff in the lawsuit when he took office in January. He later withdrew his office from the case without comment. The litigation has been continued by Connerly, who was a co-plaintiff with Wilson in the suit.
Still, the controversy over the scope of Proposition 209 is about to involve the governor. On Thursday, the Legislature gave final approval to a bill by state Sen. Richard Polanco (D-Los Angeles) stating that outreach programs for minorities and women are permissible under Proposition 209. The measure now goes to Davis.
The Legislature does not have authority to change the ballot measure. The bill is a disputed legal interpretation of the proposition that is certain to be challenged in court if it is passed.
Michael Bustamante, press secretary to the governor, said Davis has no position or comment on the bill.
The Legislature passed a similar bill last year, backed by then-Atty. Gen. Dan Lungren, the Republican nominee for governor who lost to Davis. Wilson vetoed it, saying it was unconstitutional.
Regardless of what Davis now decides, experts say, the scope of Proposition 209 will ultimately be decided by courts, not politicians.
At issue in both the legislation and the lawsuit is the term "preferential treatment" contained in the ballot measure. Proposition 209 said government "shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education or public contracting."
The dispute is whether the special attention provided by an outreach program is preferential treatment, or whether the phrase is limited to cases in which one firm or employee is selected over another because of race or gender.
In his brief, Lockyer argues that the existing outreach program in the state treasurer's office "is an inclusionary provision, which neither discriminates against nor grants preferences to anyone on the basis of race or gender."
The brief adds that the programs are "simply to ensure that [minority- and women-owned businesses] have an equal opportunity to learn about and participate in competition."
The suit Wilson filed in 1995 was legally awkward: The governor was essentially suing his own state agencies to get a court opinion that would permanently close some of their programs. The agencies were represented by state attorneys who offered no defense of the programs.
Last December, Sacramento Superior Court Judge Lloyd G. Connelly agreed with Wilson on three programs that contained rigid requirements or quotas for considering race or gender--such as the construction contracting policy.
But Connelly also ruled that the goals and outreach programs of the treasurer's office and the state lottery were not precluded by Proposition 209.
In his final days in office, Wilson appealed Connelly's ruling on those two programs.
The program in the treasurer's office involves the competitive hiring of professional bond services. It provides for special notification of minority- and women-owned businesses about any new contract opportunities.
Angelides said, however, that contract awards are based on price and qualifications--not race or gender.
The state lottery program requires any contractor receiving more than $500,000 to make a "good faith effort" to hire women or minority subcontractors.