Caltrans discriminates again

Sharon L. Browne is a principal attorney with the Pacific Legal Foundation, Ward Connerly is chairman of the American Civil Rights Institute and Linda Chavez is chairman of the Center for Equal Opportunity.

More than a decade after voters enacted Proposition 209, the constitutional measure outlawing race- and gender-based discrimination by public agencies in California, the effort to enforce it continues to meet resistance from government officials.

Whether through misunderstanding, inertia or ideologically-based defiance, many government agencies continue to treat people differently based on skin color or gender, despite the law’s clear prohibition.

Inevitably, appellate courts have recognized these policies as illegal. The state government, local officials in San Jose and Sacramento and school districts in Huntington Beach and San Juan Capistrano have all been on the losing end of Proposition 209 litigation.


Now, the spotlight turns to the California Department of Transportation.

With the apparent approval of Gov. Arnold Schwarzenegger, Caltrans has announced that in 2008 it will use race, ethnicity and gender when awarding contracts under the federal highway program. What are the agency and the governor up to?

Caltrans claims that it must employ such favoritism to make up for past discrimination by the agency or it will lose federal highway funds. In reality, it can’t support its findings that such discrimination occurred, and even it if could, it admits that it hasn’t exhausted nondiscriminatory remedies, as the law requires it to do.

Caltrans justifies flouting Proposition 209 by pointing to a loophole in the law that allows preferences to be used if federal funding would be at risk. Yet there is no real evidence that federal funding is at risk.

Consider this: In May 2006, Caltrans abandoned its policy of favoritism for minority- and female-owned business enterprises. California has since lost no federal highway funds because it went race-neutral, and the federal government hasn’t requested Caltrans to remedy discrimination problems.

Nevertheless, on Aug. 1 of this year, the agency did an about-face, abandoning its barely year-old colorblind policy. For 2008, and in accordance with federal regulations, Caltrans submitted an overall goal to Washington of 13.5% participation for minority- and female-owned businesses. It based that goal on a “disparity study” that it commissioned, which, according to Caltrans, documents a discriminatory pattern in past contracting. To meet its goal, Caltrans claims that it must take race, ethnicity and gender into account in half of its hiring programs. In the same document, however, Caltrans admits that it has yet to put into place 40 race-neutral mechanisms for remedying disparities.

On top of that, the results of the disparity study itself are questionable. The organizations we represent, among others, have pointed out to the agency and the governor that the study is deeply flawed. It offers very little evidence of discrimination. Nowhere, for example, does the report show that any contractor’s low bid was rejected because it was submitted by a minority. Even its attempt to show statistical “disparity” is not clear and never explained.

The firm that conducted the study admitted as much in the report when it indicated that Caltrans’ current data practices were inadequate and prevented the study from being able “to fully address disparities.” We also question the findings because there is no indication that Caltrans officials have been punished or dismissed for perpetrating specific acts of discrimination, a curious oversight if Caltrans believes that systematic bias has taken place.

More likely, the attempt to reintroduce racial preferences is a misguided effort by Caltrans and the Schwarzenegger administration to appease the politically correct crowd that never wanted to follow Proposition 209 in the first place. Back in May 2006, the agency made its position clear when it announced “with regret” that it would be going race-neutral and that this setback was only for an “interim period.”

Yet if garnering minority political support is the goal, the program is ill-conceived. It discriminates against Latinos while carving out special preferences for African Americans, Asian Pacific Americans, white women and Native Americans.

There are better ways to address any legitimate disparities in minority participation in transportation projects. And the race-conscious route is not just unfair -- and illegal -- it’s bad fiscal policy. Preferences mean that contracts are not going to the lowest bidder. One study has concluded that such discrimination increases the cost of state highway projects by up to 6%. Caltrans’ proposal to reinstate preferences could cost the state as much as $180 million when it gets its highway funds for 2008.

The state could inspect a lot of bridges with that money.

So Caltrans -- and the governor -- are promoting bad law and bad economics. What are they thinking?