State ban on race, gender preferences might apply to it
Bob Egelko, San Francisco Chronicle, Feb. 26
A state appeals court has cast a cloud over San Francisco’s ordinance that promotes women and minorities in city contracting, ruling that an unsuccessful bidder for an airport contract can challenge the ordinance under Proposition 209, the voter-approved ban on race and sex preferences.
The three-judge panel’s ruling, made public Wednesday, did not determine whether the city’s 1998 law violates Prop. 209. But by reinstating an Oregon construction company’s lawsuit, the court required San Francisco to confront Prop. 209 for the first time after fending off other challenges on procedural grounds.
“It could be the death knell for the ordinance, because there’s not a dime’s worth of difference between the city’s ordinance and the San Jose ordinance that was struck down” by the state Supreme Court under Prop. 209, said John Findley of the Pacific Legal Foundation, a lawyer for Coral Construction Inc.
The city defends its ordinance by arguing that federal law justifies favorable treatment of minorities and women to counteract longstanding discrimination in contracting — an argument that Findley said was rejected in the San Jose case.
“Studies show that there is discrimination in the local contracting market, and we believe it is the city’s duty under federal law to remedy that discrimination,” said Alexis Truchan, spokeswoman for City Attorney Dennis Herrera. “Our federal duties take precedence over Prop. 209, which is a state law.”
The ordinance was passed in its current form in 1998 and renewed last year. It requires bidders on all but the smallest city contracts to meet certain goals for subcontracts with minority — and female-owned firms or show good-faith efforts to recruit those firms. Another provision gives minority — and female-owned companies extra points in bidding on certain contracts.
Prop. 209, passed in 1996, prohibits race and sex preferences in public contracting, education and employment. The state’s high court ruled in December 2000 that a San Jose program, which required city contractors to meet diversity goals in subcontracting or show good-faith efforts to reach out to subcontractors owned by women and minorities, was a preference that violated Prop. 209.
Coral Construction, which installs road signs and safety equipment, was the low bidder on a contract in 2000 for signs at San Francisco International Airport, but was disqualified because it proposed to do all the work itself and did not document any effort to enlist minority — or female-owned subcontractors.
The company’s suit to overturn the ordinance was dismissed in September 2002 by Superior Court Judge James Robertson, who said Coral Construction had failed to show that it faced imminent harm from continued enforcement of the ordinance. He said the company rarely bid on city contracts, and the city seldom offered the type of work the company performed.
But Robertson’s ruling, similar to those that have dismissed other Prop. 209-based suits against San Francisco, was overturned by a three-judge Court of Appeal panel. A company that has been harmed by the ordinance in the past, and “stands ready, willing and able to bid in the future on contracts governed by the ordinance,” is entitled to challenge its enforcement, wrote Justice Maria Rivera.
E-mail Bob Egelko at firstname.lastname@example.org.