5 State Laws Fall Victim to Prop. 209

A state appellate court Tuesday struck down California’s major affirmative action laws that give a boost to women and minorities, ruling that they violate the anti-affirmative action initiative Proposition 209.

The state Court of Appeals in Sacramento struck down five remaining state laws that seek “goals and timetables” to help women and minorities win state jobs and posts at community colleges.

The decision was the first major appellate interpretation of Proposition 209 since the California Supreme Court affirmed the 1996 initiative last November.

“Such an establishment of specific hiring goals necessarily is, in itself, the establishment of hiring preferences,” the court said in a 3-0 decision written by Justice Arthur G. Scotland.

The ruling could lead to elimination of a host of existing state practices that have given preference to members of certain racial groups over others in government hiring, contracting and other fields. One of the five statutes struck down Tuesday, for instance, sets out the standards for hiring 200,000 civil servants.

The court, reversing a 1998 decision by a Superior Court judge in Sacramento, also declared unconstitutional laws requiring that the lottery, the state treasurer and state Department of General Services take steps to attract “socially and economically disadvantaged” business owners, which it found were either minority or women-owned.

The three-judge court cited no specific instances of discrimination. However, the justices held that racial “classifications are pernicious and are so rarely relevant to a legitimate governmental purpose” that they must be judged by the most strict standard of constitutional review.

“They may be upheld only if they are shown to be necessary for furtherance of a compelling state interest and they address that interest through the least restrictive means available,” the court said.

Ward Connerly, a University of California regent who championed Proposition 209, proclaimed that the ruling will “bring finality to Proposition 209,” five years after voters approved the initiative by a 13% margin. Connerly and then-Gov. Pete Wilson sued the state to demand enforcement of the initiative and were represented by the conservative Pacific Legal Foundation.

“The principle of equal treatment under the law means just that,” Connerly said Tuesday, standing outside the state courthouse here. “You can’t finesse it. . . . It means equal treatment under the law for every person--white males and black females, and Latinos and Asians, and everybody else in this great state.”

In one of the few victories for the state, the court held that authorities can continue to collect data about race and gender in hiring and contracting.

Even that could be short-lived. Connerly is contemplating an initiative aimed for the ballot in November 2002 that would bar the state from collecting such data, except in a few circumstances.

“Race is none of the government’s business,” Connerly said.

Adversaries cast the issue far differently.

“[Connerly] doesn’t want society to be race-blind,” said Jeffrey L. Bleich, a San Francisco lawyer who helped defend the state laws. “He wants it to be race-ignorant.”

Bleich said the ruling means that “the state can collect data to indicate whether it is discriminating. But there is no mechanism in place to address that discrimination once it has been detected.”

Atty. Gen. Bill Lockyer, whose office took the lead in defending the state against the suit by Connerly, has not decided whether to appeal. The ACLU and city of San Francisco also joined in the defense.

Neither Tuesday’s ruling nor Connerly’s proposed initiative would affect the many police agencies, including the LAPD, which either have begun or are about to begin collecting data regarding the ethnicity of people they stop or arrest.

State law sometimes cannot affect those practices. In the case of the LAPD, for instance, the department is bound by a federal consent decree that requires the data collection, in addition to other consent decrees that set out hiring and promotion goals for women and minorities. Because those goals are mandated by the federal courts, state law cannot change them.

In the 1998 ruling that was overturned by the appellate court, Superior Court Judge Lloyd Connelly had declared some practices illegal. But he permitted some types of outreach by the state.

Treasurer Doubts Office Operations Will Change

On Tuesday, state Treasurer Phil Angelides said he doubts Tuesday’s ruling will affect his operation. The treasurer’s office will continue to issue “broad notices” to the financial industry to ensure that all companies are aware of various bond issues being contemplated.

“This wasn’t a law where there were any ‘gimmies,’ ” Angelides said. “We’ve been [notifying] people broadly. . . . All public agencies have an obligation to . . . affirmatively reach out and make sure everyone knows they have the opportunity to do business with the state.”

The California Supreme Court already has affirmed Proposition 209, striking down a San Jose ordinance last year requiring that government contractors solicit bids from companies owned by women and minorities.

The proposition created a state constitutional amendment that says the “state 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.”

In Tuesday’s case, Connerly vs. State Personnel Board, C032042, the appellate court found that in addition to violating the state Constitution, the state laws violated the federal constitutional guarantee of equal protection.

The appellate court invoked the so-called strict scrutiny standard of review, a standard used when basic constitutional rights are at stake.

“When a governmental scheme uses a racial classification,” the justices said, “the action is not entitled to the presumption of constitutionality which normally accompanies governmental acts. A racial classification is presumptively invalid, and the burden is on the government to demonstrate extraordinary justification.

“Regardless of the burdens or benefits imposed by or granted under a particular law, the use of a racial classification presents significant dangers to individuals, racial groups, and society at large.”

One of the laws struck down, for example, said the state Lottery Commission had an “affirmative duty” when hiring contractors to maximize participation by “socially and economically disadvantaged small-business concerns.”

“Economic disadvantage,” the court said, “is a criterion that may be determined through application of race-neutral and gender-neutral financial factors. Social disadvantage is a more amorphous concept that certainly invites reliance on racial and gender classifications.”

The court noted that individuals from a list of racial and ethnic backgrounds and women “are conclusively presumed to be socially and economically disadvantaged regardless of their actual affluence.”

“Persons from the excluded group, apparently only white males, may be included if found by the commission to be disadvantaged,” the court said.

“But the statute provides no definitional criteria, no application procedures, and no procedures for review of the commission’s determination,” it said.