California and the West : Prop. 209 to Face Test in High Court : Hiring: State justices will decide if measure bars governments from requiring contractors to seek bids from minorities and women.

In its first examination of Proposition 209, the California Supreme Court decided Wednesday to review whether the anti-affirmative action initiative prohibits state and local governments from requiring contractors to seek bids from businesses owned by women and minorities.

Federal courts already have ruled the 1996 initiative constitutional, but the state high court has yet to examine exactly what outreach programs may still be allowed under the measure. The court’s ultimate decision could affect hundreds of existing or suspended programs aimed at reducing discrimination throughout the state.

The court, meeting in closed session, decided unanimously to review a Court of Appeal ruling that struck down a city of San Jose contracting program designed to encourage, although not mandate, the hiring of female- and minority-owned firms as subcontractors. Under that law, contractors were required to seek bids but did not have to accept them.

The May ruling had been considered a major victory for opponents of affirmative action because it would have eliminated a new generation of programs crafted to skirt legal objections to preferences.

San Jose, responding to court rulings that limited affirmative action, abolished its former system of mandated goals with a new “outreach” program that city officials contend is still permitted under Proposition 209. Rather than asking contractors to meet goals, the city simply said they must make a good-faith effort to subcontract to women and minorities. The contractors were required to keep records that provided evidence of these recruitment attempts.

San Jose City Atty. Joan Gallo, who had sought state high court review of the May ruling, said the Supreme Court’s eventual decision will have a wide impact in the state, affecting not only contracting but employment programs.

“Let’s say we have an underrepresentation of Vietnamese police officers,” Gallo said. “We might go into the Vietnamese community to do our recruiting. Same principle. Can you do focused outreach in circumstances where you have a disparity?”

She said she expected the court to accept the case because “there is a real contradiction” in how state lawmakers interpret the measure. She noted that the Legislature recently passed a bill that would have endorsed outreach, but Gov. Gray Davis vetoed it after deciding it conflicted with Proposition 209, which was approved by 54% of voters in 1996.

“You can’t find any instance in which the disparity of views is closer than that,” said Gallo, adding that participation by minority- and female-owned firms in San Jose city contracts has plummeted since the city program was struck down.

Sharon Browne, an attorney with the Pacific Legal Foundation, a conservative public interest firm, had opposed Supreme Court review of the case. But she said Wednesday that she nevertheless expects the court to uphold the appellate and trial rulings against the city program.

“What they can do now is to make the Court of Appeal opinion, by affirming it, binding throughout the entire state,” Browne said.

She said San Jose’s “outreach” still amounts to affirmative action. “Their affirmative action officer is now called the equal opportunity officer and instead of a recruitment program, they call it outreach,” Browne said. “What they really did was change labels, and the Court of Appeal recognized that was what they did.”

The California Supreme Court will consider other petitions for review of affirmative action programs in the coming weeks. Among them will be a petition that asks the court to review whether the state can require agencies to keep track of how many public contracts went to women and minorities.

The San Jose law applied to city construction contracts of more than $50,000. It required that contractors contact a certain number of minority- and female-owned firms and solicit bids from them. The contractor, however, could reject the bids.

“It has nothing to do with who gets the contract,” Gallo said. “All they have to show is that they did the outreach.”

The case was brought by Hi-Voltage Wire Works of Rancho Cordova after it lost a city contract for work on a sewer system although it was the lowest bidder. The firm did not comply with the ordinance because it said it could do the work without subcontractors.

The California Supreme Court’s decision in the case is expected within about a year.

In other action Wednesday, the state high court decided unanimously to review California’s so-called “Son of Sam” law, which prohibits felons from selling their stories to the media. The court is expected to decide whether the law violates 1st Amendment rights of freedom of expression.