HomeMy WebLinkAboutMINUTES - 09161997 - D3 D. V
TO: Board of Supervisors
FROM: Phil Batchelor, County Administrator
Victor Westman, County Counsel
DATE% September 16, 1997
SUBJECT: PROPOSITION 209
SPECIFIC REQUEST(S) OR RECOMMENDATIONS) & BACKGROUND AND JUSTIFICATION
Insofar as State Proposition 209 is no longer stayed by court
order, and in order to comply with existing law, this Board, acting
in all of its capacities, orders as follows:
1. The County's MBE/WBE Program for construction contracts,
professional/personal services contracts, and purchasing is
suspended pending further action in the event Proposition 209
is enjoined or is determined to be invalid or unenforceable; and
2 . The Board declares its continued support for efforts to promote
the utilization of MBEs and WBEs and the hiring of minorities
and women.
CONTINUED ON ATTACHMENT: YES SIGNATURE
RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDAT OF, ARD OMMI TEE
APPROVE OTHER
SIGNATURE(S):
ACTION OF BOARD ON September 16, 1997 APPROVED AS RECOMMENDED X OTHER X
Please see Addendum (Attached) for list of speakers and additional Board Action.
VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE
AND CORRECT COPY OF AN ACTION TAKEN
X UNANIMOUS (ABSENT ------------ ) AND ENTERED ON THE MINUTES OF THE BOARD
AYES: NOES: OF SUPERVISORS ON THE DATE SHOWN.
ABSENT: ABSTAIN: September 16, 1997
ATTESTED: PHIL BATCHELOR, CLERK OF THE BOARD OF
SUPERVISORS AND COUNTY ADMINISTRATOR
cc: Supervisors
County Administrator
County Affirmative Action Officer4' - f
County Counsel BY
Public Works Director Christine Wampler
Equal Employment Opportunity Advisory Council
Human Relations Commission
Women's Advisory Committee
County Mouth Commission
D.3
ADDENDUM
Item D.3
September 16, 1997
Phil Batchelor, County Administrator and Victor J. Westman, County Counsel,
provided the attached recommendations to the Board of Supervisors relative to
Proposition 209. The Board members discussed the issues and then Chairman
DeSaulnier invited the public to comment.
The following persons addressed the Board:
Jonothan Dumas, Equal Employment Opportunity Advisory Council,
Contra Costa Building & Construction Trades Council, 41 Carter
Court, El Sobrante;
Kofi Opong-Mensah, MENSA Laboratories, P.O. Box 5771, Hercules;
Greg Feere, Contra Costa Building Trades Council, 935 Alhambra
Avenue, Martinez;
Wanda Harris, Women's Advisory Committee, 5289 Pine Hollow Road,
Concord;
Zenohia Thomas, Women's Advisory Committee, 4745 Kangaroo Court,
Antioch;
Lindsay Johnson, Women's Advisory Committee, 1,125 Discovery Way,
Concord; and
Sharon Barone, Women's Advisory Committee, 3174 Naranj a Drive,
Walnut Creek.
All persons desiring to speak having been heard, the Board further discussed the
issues and took the following action:
1. APPROVED Recommendations Nos. 1 and 2, as listed on the attached Board
Order;
2. DIRECTED staff to prepare and distribute a notice to appropriate community
groups informing them of the Board's action today;
3. REFERRED this matter to the Human Relations Commission, the Women's
Advisory Committee, the County Youth Commission and the Equal
Employment Opportunity Advisory Council for review;
4. DIRECTED that this matter come back to the Board for review within 60
days; and
5. CLARIFIED the Board's intent to continue notification and outreach; to
continue to maintain records and monitor contracts through the Affirmative
Action Office; and to continue to encourage good faith efforts in the County's
proposals and advertisements.
cc: Supervisors
County Administrator
- County Affirmative Action Officer
County Counsel
Public Works Director
Equal Employment Opportunity Advisory Council
Human Relations Commission
Women's Advisory Committee
County Youth Commission
BAR ASSOCIATION OF SAN FRANCISCO
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465 CALIFORNIA STREET
SUITE 1100
SAN FRANCISCO, CA 94104
PHONE: 415/982-1600
PAX: 415/477-2388
09/16/97 TLE 10:39 FAX 415 477 2388 BAR ASSOCIATION 10002
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THE BAR ASSOCIATION OF SAN FRANCISCO
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1997 September 3, 1997
Z
Z Dear Friend:
4
Jeffrey S.Ross The Bar Association of San Francisco has long supported programs of
President affirmative action as effective tools to remedy the legacy of historic barriers to
Lindbergh Porter,Jr.
President-Elect the equal advancement of women and minorities in our society. Following the
Therese sM.Stewart passage of Proposition 209, BASF asked the law firm of Morrison and
Treasureraurer
Fred Alvarez Foerster to draft an analysis of the legal arguments which, notwithstanding the
Secretary provisions of Proposition 209,may support the continuance of certain kinds of
Execllautive
Stender Ramey public sector affirmative action programs and/or the creation of new such
Executive Director and P P �
General Counsel programs.
Joan Firestone
Deputy Executive Director
Barbara Fanning For your information, BASF is distributing the enclosed memorandum from
Continuing Legal Education Morrison and Foerster. If there is someone whom you believe would be
CamiPublications
Keltions er appropriate to receive this memorandum please contact Lisa Wanzor at
Publications �
Connie Moore-Dunning BASF, at 415-982-1600 ext.107 with his/her name and address.
Alternative Dispute
Resolution Services
Mary S.Young BASF has also established a hotline (415-782-9007) to answer.preliminary
Chief Financial Officer questions about the implementation of Proposition 209 and to act as a
Tanya Neiman
Associate General Counsel clearinghouse for queries,which will then be referred to volunteer attorneys
Director,Volunteer Legal
Services Program throughout the Bay area.
Carol Woods
Lawyer Referral Service
Ann Coulson Sincerely,
Membership
Barristers Club
BOARD OF DIRECTORS AdA
Ruth Borenstein
Elizabeth Cabraser Jeffrey S. ROSS
Stewart H.Foreman
Anne B.Gust President
James S.Hamasaki
Joni T.Hiramoto
Martha 1.Jimenez
Donn P.Pickett
Russell S.Rocca
Robert Rosenfeld
Stephen M.Snyder
Jon Streeter
Stephen E.Taylor
Mary B.Templeton
Rebecca Westerfield
EX-OFFICIO MEMBERS
BARRISTERS CLUB
James Donato
President
Lisa S.Serebin
President-Elect
Daniel S.Wittenberg
Treasurer
Angel A.Garganta
Secretary
The Merchants Exchange Building,465 California Street,Suite 1100,San Francisco,CA 94104-1826
Telephone(415)982-1600 Telecopier(415)477-2368 • Lawyer Referral Service(415)989-1616
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ANALYSIS OF THE COVERAGE
OF PROPOSITION 2 0 9
On November 5, 1996,the California electorate adopted Proposition 209, known as the
California Civil Rights Initiative. This Proposition amends the California Constitution by adding
section 31 to article 1. Proposition 209 threatens to dismantle race-' and gender-based
affirmative action programs in the state's public sector. Proposition 209 provides in relevfint
part:
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.
Cal. Const. art. 1, § 31(a).2
The day after the general election, several individuals and civil rights groups filed it
complaint against state government officials and departments, alleging that Proposition 209
denies racial minorities and women equal protection of the laws as guaranteed by the Founeenth
Amendment and violates the Supremacy Clause because it directly conflicts with Titles VI and
VII of the Civil Rights Act of 1964 and Title IX of the Educational Amendments of 1972. See
Coalition for Economic Equity v. Wilson, 946 F. Supp. 1480 (N.D. Cal. 1996). The District
Court granted a preliminary injunction preventing enforcement of Proposition 209 on
December 23, 1996. Id.
On appeal,the Ninth Circuit reversed the district court decision and vacated the
preliminary injunction. See Coalition for Economic Equity v. Wilson, 110 F.3d 1431, 1449 (9th
Cir. Apr. 8, 1997). The court denied plaintiffs'/appellees' petition for rehearing en banc on
August 21, 1997.
California's municipalities and state agencies now face great uncertainty as to whether
their race-and gender-conscious programs must be dismantled, and as to what latitude they have
in promulgating further race- and gender-conscious programs. The Bar Association of San
Francisco asked Morrison& Foerster to analyze arguments which would support the retention of
certain affirmative action programs and the ability of California municipalities and other
agencies to continue to enact some race- and gender-conscious programs in the future.
For purposes of this memorandum, "race"refers to color, ethnicity, and national origin.
2 The full text of the Proposition is set out in Appendix A.
COVERAGE OF PROPOSITION 209 1
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CV7wids, w� D• 3
Many race-and gender-conscious programs in the areas of public contracting, education
and employment may be allowed to continue, or may be created in the future,without violation
of Proposition 209. Specifically,the following types of affirmative action programs may survive
Proposition 209:
• Private sector race- and gender-conscious programs.
• Programs giving preference on any basis other than race or gender.
• Race- and gender-conscious outreach and recruitment programs which do not
operate to deny anyone a concrete benefit.
• Race-and gender-conscious programs which operate to detect and prevent
discrimination.
• Court-ordered consent decrees in place at the time of Proposition 209's
enactment.
• Race- and gender-conscious teacher reassignment programs that do not grant or
take away a benefit.
• Race- and gender-conscious student reassignment and bussing programs that do
not grant or take away a benefit.
• Court=ordered consent decrees mandated by federal law.
• Race- and gender-conscious programs mandated by Title VI or Title IX
regulations to remedy prior discriminatory practices.
• Race-and gender-conscious programs necessary to remedy discriminatory
conditions amounting to Title VII violations.
This memorandum analyzes arguments supporting the continued viability of these
categories of programs.
I. PROPOSITION 209 DOES NOT APPLY TO PRIVATE ENTITIES OR TO
PREFERENCES ON THE BASIS OF ANYTHING OTHER THAN RACE
OR GENDER
The text of Proposition 209 expressly restricts its coverage to government action. Private
activities are not affected by the Proposition.
Moreover,the Proposition covers only preferences"on the basis of race, sex,color,
ethnicity or national origin." Preferences based on any other factors are not affected by the
COVERAGE OF PROPOSITION 209 2
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Proposition. Thus, Proposition 209 does not alter preferences on the basis of veteran's status,
religion, age,economic disadvantage, sexual orientation or disability.
II. PROPOSITION 209 BARS ONLY"PREFERENTIAL TREATMENT" AND
NOT ALL AFFIRMATIVE ACTION PROGRAMS.
Proposition 209 only precludes government action which"discriminate[s] against,or
grants] preferential treatment to,"an individual or group on the basis of race or sex. A key
question is how the term"preferential treatment . . . on the basis of race"will be interpreted.
Based on the only decision interpreting Proposition 209,along with numerous other cases
decided under the Equal Protection Clause, a very likely interpretation of the Proposition is that
it precludes affirmative action programs which impose a concrete detriment to members of the
nonpreferred group, such as a lost job, school admission, or government contract. The
Proposition likely does not restrict programs that do not impose concrete detriments, such as
outreach and recruitment affirmative action programs.
A. A Likely Interpretation of Proposition 209 is That It Only Precludes
Affirmative Action Programs Which Impose a Concrete Detriment on
.a Nonpreferred Group.
The only court to construe Proposition 209 has confirmed that it is limited in scope, and
does not preclude all programs commonly referred to as"affirmative action." In Lungren v.
Superior Court, 48 Cal. App. 4th 435 (1996), the Court of Appeal for the Third District
overruled a superior court's order requiring the Attorney General to revise the ballot title and
ballot label for Proposition 209 to"reflect that the chief purpose of the measure is to prohibit
affirmative action programs by public entities." Id. at 437. The court observed that the term
affirmative action is undefined and would by most definitions include "not only the conduct
which Proposition 209 would ban, i.e. discrimination and preferential treatment,but also other
efforts [not banned by Proposition 209] such as outreach programs." Id at 442. The coup
concluded that"any statement to the effect that Proposition 209 repeals affirmative action
programs would be over inclusive and hence `false and misleading."' Id. The court thus issued a
peremptory writ of mandate directing the superior court to vacate its judgment. Id at 443.
The Lungren court explicitly held that"outreach programs"are outside the scope of
Proposition 209,because they do not constitute"preferential treatment"on the basis of race. Id.
at 442. This decision is particularly important in determining the scope of the term"preference."
A court reviewing an initiative must interpret it so as to effectuate the voters' intent. Board of
Supervisors v. Lonergan, 27 Cal. 3d 855, 863, 866 (1980). Courts consider material indicative of
that intent as legislative history. In re Lance W, 37 Cal. 3d 873, 887-90 (1985)(court may
consider ballot summaries and arguments, legislative staff analyses and other sources from which
the voters' intent may be discerned). The Lungren case was decided on August 12, 1996---
almost three months before the electorate voted on Proposition 209. Many voters likely were
aware of this decision prior to voting. Therefore, a court may find this decision—like bal lot
summaries—to be indicative of the voters' intent in enacting the Proposition.
COVERAGE OF PROPOSITION 209 3
SEPTEMBER 4, 1997
Moreover, the fact that the Attomey General argued (and prevailed)in the Lungren case
that Proposition 209 does not ban all affirmative action programs may preclude him from
arguing to the contrary in later proceedings. "Judicial estoppel, sometimes also known as the
doctrine of preclusion of inconsistent positions,precludes a party from gaining an advantage by
taking one position, and then seeking a second advantage by taking an incompatible position."
Rissetto v. Plumbers and Steamfrtters Local 343,94 F.3d 597, 600(9th Cir. 1996).4 The
doctrine applies even where the inconsistent position was taken in an earlier administrative
proceeding, and where the prior proceeding ended in a settlement,rather than an actual adoption
of the proffered position by the administrative tribunal. Id.
In Yniguez v. Arizona,939 F.2d 727(9th Cir. 1991), for example,the Attorney General
sought to intervene to appeal the district court's ruling on the constitutionality of a ballot
initiative. The court applied the doctrine of judicial estoppel in denying the motion. The court
explained that the Attorney General had represented to the district court that he did not wish to
be a party to the proceedings and persuaded the court to rule in his favor. The court thus
estopped the Attorney General from later arguing that he was entitled to intervene. Id. at 7 3 8.
The analysis of courts applying traditional equal protection analysis confirms that an
affirmative action program employs a"preference based on race"only if it imposes a concrete
detriment on a member of another group. Courts consistently have held--both before and after
Croson5—that programs in which selection for a job, admission, or contract is not made on the
basis of race or gender, do not employ"preferences" and are therefore not constitutionally
suspect or subject to strict scrutiny. In Kromnick v. School District of Philadelphia, 739 F.2d
894 (3d Cir. 1984), cert. denied,469 U.S. 1107 (1985),the Third Circuit concluded that only
affirmative action programs granting "preferences" are subject to strict scrutiny,while other race-
3 Indeed,the State did not argue to the district court at the preliminary injunction stage
that outreach programs were included in Proposition 209's scope. See Defendants'
Memorandum of Points and Authorities in Opposition to Application for Temporary Restraining
Order at 21-22.
4 The court in Rissetto found that judicial estoppel in federal court is governed by federal
law. Id. at 603. California courts, however, also apply the doctrine of judicial estoppel. See
Prilliman v. United Air Lines, Inc., 53 Cal. App. 4th 935, 956-963 (1997)(although court Bound
doctrine inapplicable to the facts of the case,court outlined parameters of judicial estoppel in
California); Coleman v. Southern Pacific Co., 141 Cal. App. 2d 121, 128 (1956)(The doctrine of
judicial estoppel precludes a party from asserting inconsistent positions and applies only where
the position taken in the first proceeding is so "clearly inconsistent"with the position taken in the
subsequent case "that one necessarily excludes the other.")
5 In Croson, the majority of the Court held that a benign racial classification—a racial
classification designed to aid members of racial minorities--should(like racial classifications
that discriminate against racial minorities)be subject to strict judicial scrutiny. Richmond v. J.A.
Croson Co., 488 U.S. 469(1989).
COVERAGE OF PROPOSITION 209 4
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and gender-conscious programs are not subject to strict scrutiny. "In both Bakke and Fullilove,
the governmental action imposed a preference based on race,which resulted in an undeniable
detriment to members of the nonpreferred race." Id. at 902. The court reasoned that not al( race-
and gender-conscious programs conferred a preference,and that only those programs granting a
race or gender preference.were suspect and thus subject to strict scrutiny. Id. at 902-03.
The court's opinion sheds some light on what type of race-and gender-conscious
programs creates"preferences":
The [teacher transfer] program challenged in this action creates no preference of
the type usually associated with claims of"reverse discrimination." There is no
contention that teachers are either hired or laid off on the basis of race. There is
no.contention that teachers are promoted on the basis of race. There is no
contention that any classification with any monetary significance is made on the
basis of race. The challenge is to a policy that only affects assignment of teachers
to schools.
Id. at 902. See also Raso v. Lago, 958 F. Supp. 686, 702 (D. Mass. 1997)("Although the
affirmative recruitment of minority applicants is race-conscious conduct . . . such conduct alone
does not constitute a `preference' within the meaning of Croson and Adarand.");Stanley v.
Darlington County Sch. Dist., 915 F. Supp. 764, 774-76 (D.S.C. 1996)(suggesting that school
desegregation plan which is not"race preferential"is not subject to strict scrutiny);Martin ex rel.
Lauren v. School Dist., 1995 WL 5643441 *2 (E.D. Pa. 1995) (citing earlier decisions holding
that"an intermediate standard of review is more appropriate when a given policy . . . is race-
conscious but not race preferential");McLaughlin v. Boston School Committee,No. 95-188.03
WAG(D. Mass. Aug. 22, 1996)(finding that strict scrutiny is not applied to merely race-
conscious or race-neutral—and not preferential—programs).
It can also be argued that"preference"does not include race-and-gender-conscious
programs which,under Fourteenth Amendment jurisprudence,would not be subject to strict
scrutiny. In its equal protection analysis, the Ninth Circuit explained that any racial
classification by a state subjecting a person to unequal treatment is subject to"the strictest
judicial scrutiny." Coalition for Economic Equity v. Wilson, 110 F.3d 1431, 1997 U.S. App.
LEXIS 6512 at *43-44(9th Cir. 1997). The court continued: the Constitution allows the
granting of a preference only if the state comes forward with a"compelling state interest to back
it up." Id. at *45, The court then emphasized that Proposition 209 merely reaffirmed the Equal
Protection Clause, and,holding that the Fourteenth Amendment cannot"require what it barely
permits,"found the Proposition not to violate the Fourteenth Amendment. Moreover,the Ninth
Circuit recognized that other programs are not presumptively illegal and not subject to strict
scrutiny. Id at 43 n.16(court distinguished school desegregation programs from other race- and
gender-conscious programs because these are not"inherently invidious"and do not work wholly
to the benefit of one group and the harm of another). Although the Ninth Circuit opinion on
Proposition 209 did not identify programs(other than those referred to in its footnote 16)that
would be in this category,there is a legitimate argument that Proposition 209 does not apply to
programs which would not be subject to strict scrutiny. As discussed below,many kinds of
COVERAGE OF PROPOSITION 209 5
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affirmative action programs have been held not to be subject to strict scrutiny. 'Those programs
may also be permissible under Proposition 209.
B. Many Affirmative Action Programs Do Not Impose Concrete
Detriment on a Member of Another Group,and Therefore May Fall
Outside Proposition 209's Scope.
Many affirmative action programs assist minorities and women but do not impose a
concrete detriment on other groups,and are therefore likely to survive Proposition 209.
1. Race- and Gender-Based Recruitment and Outreach Programs in
the Area of Public Education,Employment and Contracting
Should Survive Proposition 209's Implementation.
The clearest example of race-and gender-conscious programs which should survive
Proposition 209 are recruitment and outreach programs.
The Lungren court,the only court to interpret Proposition 209, has held that outreach
programs do not fall within its scope. See Lungren v. Superior Court,48 Cal. App. 4th 435,442
(1996)("Proposition 209 would [not] ban . . . other efforts such as outreach programs").
Moreover, under the Ninth Circuit's reasoning, such programs would not be encompassed within
the Proposition, as they are not presumptively illegal.
Courts consistently have held that minority-only recruitment and sponsorship programs
and minority employment goals are not subject to strict scrutiny and are likely not to be
considered"preferential treatment." For example, in Peightal v. Metropolitan Dade County,
26 F.3d 1545, 1557-58 (11th Cir. 1994), the court characterized "high school and college
recruiting programs,to provide information and to solicit applications from young minorities and
women for firefighting positions as race neutral. See also Quirin v. Pittsburgh, 801 F. Supp.
1486, 1492 (W.D. Pa. 1992) (striking down set-aside program which allotted a percentage of
firefighter positions for women applicants,but stating that the city was free"to employ a variety
of means to attempt to attract more women to the position of firefighter"such as "attempts to
sponsor or recruit women military veterans or to provide additional coaching for women
applicants'). See also Kilgo v. Bowman Transp., Inc., 576 F. Supp. 600 (N.D. Ga. 1984),aff'd,
.789 F.2d 859 (11th Cir. 1986) (finding defendant liable for gender-based discrimination and
ordering implementation of outreach program directed at schools with substantial female
enrollment and further ordering new hiring procedures--including promulgating a list of
acceptable truck driving schools form which defendant would be willing to hire women); Raso v.
Lago,958 F. Supp. 686(D. Mass. 1997)(post-Croson case holding that"[a]lthough the
affirmative recruitment of minority applicants [in housing] is race-conscious conduct . . . such
conduct alone does not constitute a`preference' within the meaning of Croson and Adarand.")
Similarly, in the areas of public education and public contracting,minority recruitment
and minority application fee waivers have been labeled "race neutral"and thus not subject to
COVERAGE OF PROPOSITION 209 6
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strict scrutiny. Ensley Branch, N.A.A.C.P. v. Seibels, 31 F.3d 1548, 1571 (11th Cir. 1994). Such
programs therefore should not be construed as"preferential treatment" under Proposition 209,
2. Programs Using Numerical Criteria Designed To Detect and
Prevent Discrimination May Survive Proposition 209's
Implementation.
It can be argued that programs which employ statistical comparisons and numerical goals
simply as a means of measuring potential discrimination and not as a preference are not covered
by the Proposition.
With respect to public contracting, the Ninth Circuit recently invalidated under the Equal
Protection Clause a statute requiring general contractors who bid on state contracts to meet
designated subcontracting goals for participation by minority-and women-owned businesses, or
to demonstrate good faith efforts to do so. Monterey Mechanical Co. v. Wilson,No. 96-16729
(9th Cir. Sep. 4, 1997). The Court held that the statute constituted a racial classification,acid
failed to satisfy strict scrutiny. Id.6
The Monterey Mechanical decision leaves several open questions regarding the effect of
Proposition 209 on affirmative action measures in public contracting. First, it does not resolve
whether a measure establishing subcontracting goals constitutes a"preference"under
Proposition 209. Thus, even if such a measure is subject to strict scrutiny under Monterey
6 Other courts have held that similar measures were not subject to strict scrutiny. As
Judge Higginbotham of the Third Circuit explained,there is a strong argument that because a
Minority Business Enterprise/Women Business Enterprise("MBE/WBE")program "merely set[]
goals and requires no action on the part of the City,this provision does not create any righis on
the part of minority-owned firms or any responsibilities owed those firms by the City." He
reasoned that the"provision,on its face,therefore, does not trigger strict scrutiny, in contrast to
the Richmond Plan considered in Croson." Contractors Assn v. Philadelphia, 945 F.2d 1260,
1269 (3d Cir. 199 1) (Higginbotham, J. concurring);see also Associated Pennsylvania
Constructors v. Jannetta, 738 F. Supp. 891, 893 (M.D. Pa. 1991) (minority and women-
participation objectives did not trigger strict scrutiny because"the policies do not require use of
certain percentages of women and minorities but,rather, seek to ensure no current
discrimination," because the"policy statements create no quota or goal system,the court finds
that strict scrutiny does not apply");First Capital Insulation v. Jannetta, 768 F. Supp. 121 (M.D.
Penn. 199 1) (following Associated Pennsylvania Constructors,738 F. Supp. 891,,and holding
statute which required bidder to list the amount of work MBEs and WBEs would perform on the
contract was not subject to strict scrutiny). But see Cone Corp. v. Hillsborough County,908
F.2d 908 (11th Cir.)(upholding county's MBE law which set MBE participation goals that could
be met if the bidder made good-faith efforts,but applying strict scrutiny),cert. denied,498 U.S.
983 (1990); Concrete Works v..City and County of Denver, 36 F.3d 1513 (10th Cir. 1994)
(applying strict scrutiny to ordinance establishing participation goals for public works pro1'ects
that could be satisfied by good-faith efforts).
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Mechanical, it nonetheless may be unaffected by Proposition 209 if it does not impose.
"preferential treatment"on a racial basis. As explained above,there is a strong argument that a
measure that only requires good faith efforts to contact minority-owned and women-owned
businesses does not impose a concrete detriment to anyone, and therefore is not a"preference"
under Proposition 209. The Ninth Circuit explicitly declined to consider the effect of
Proposition 209 in its Monterey Mechanical decision. See slip op. at n. 4.
The Lungren decision supports the conclusion that a subcontractor goal statute is
unaffected by Proposition 209. The California Court of Appeal noted that the term affirmative
action"would include not only the conduct which Proposition 209 would ban, i.e.,
discrimination and preferential treatment,but also other efforts such as outreach programs."
48 Cal. App. 4th 435,442. The Court went on to list numerous types of such"outreach"
programs not affected by Proposition 209, including"[a]ction taken to provide equal
opportunity, as in hiring or admissions, for members of previously disadvantaged groups, such as
women and minorities, often involving specific goals and timetables." Id.
Second,the Monterey Mechanical decision relied on the fact that the statute before it
"allows a minority or women business enterprise to satisfy the goals by allocating the percentage
of work for its group to itself. . . . Thus, not all general contractors bidding on state projects are
treated the same way." It remains an open question whether an affirmative action program
requiring all bidders,whether they are minority-owned or not,to-comply with subcontracting
goals, would constitute a racial classification subject to strict scrutiny.
Third,the Court in Monterey Mechanical considered it important that the statute's
subcontractor goals were "firm requirements,enforced by rejection of low bids . . . unless all the
requirements are met." A statute with less"firm"requirements, by contrast,might not trigger
strict scrutiny. That was the holding of the California Court of Appeal in Domar Electric, Inc. v.
City of Los Angeles,41 Cal. App. 4th 810, 826(1995). In that case the Court considered the
constitutionality of an outreach program promulgated pursuant to California Public Contract
Code section 2000.7 The Board of Public Works("Board")had established an outreach program
which specified the percentage of MBEs and WBEs which was expected to result from the
outreach efforts. The achievement of that goal was one of ten indicators of good faith,anti
7 Public Contract Code § 2000(a)(1)allows a local agency to impose a condition in bid
specifications that the bidder"meet[) goals and requirements established by the local agency
relating to participation in the contract by minority business enterprises and women business
enterprises." If the participation goals are not met,the bidders' good-faith effort to achieve those
goals is evaluated pursuant to the 10 criteria set forth in § 2000(b).
Public Contract Code § 2000(a)(2)allows a local agency to require that a bidder"make[]
a good faith effort, in accordance with the criteria [set forth in § 2000(b)] . . .to comply with the
[MBE/WBE participation goals]." After Croson became law,cities which had not empirically
demonstrated past discrimination could rely upon(a)(2)only. Domar Electric, Inc. v. City of Los
Angeles,41 Cal. App. 4th 810, 824 (1995).
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failure to attain the goal did not by itself disqualify any bidder from consideration for a contract.
Id. at 817. in the contract at issue in the case,the low bidder failed to submit the required good-
faith documentation code,and his bid was deemed non-responsive. The low bidder brought suit,
alleging that the code and the outreach program violated the Equal Protection Clause as
interpreted by Croson. Id. at 819.
The court held that, unlike the plan in Croson, `the board's outreach program seeks no
more than to ensure that the playing field [was] level for all subcontractors. As such,it [was]
race- and gender-neutral." Id. at 826. The court noted that the percentage of MBE/WBE
participation was"not a preference,quota,or set aside. Rather, it was merely an indication of the
level of MBE/WBE subcontractor participation that might be expected if'the good-faith criteria
were met. Id.; cf. Shuford v. Alabama State Bd. of Educ., 897 F. Supp. 1535, 1555 (M.D. Ala.
1995)(approving consent decree and holding that employment goals,for the employment of
women did not violate the equal protection clause so long as they did not operate as quotas or
set-asides).
Fourth,the Monterey Mechanical decision would not apply to various race-neutral
methods for encouraging participation of subcontractors. For example,the Court's analysis
would not foreclose a program requiring demonstrated good faith efforts to solicit bids from
subcontractors of all races. Nor would it forbid the enactment of a program which required
bidders to disclose the racial composition of their subcontractors,and provide some form of
explanation regarding substantial discrepancies, for any race,between their use of subcontractors
and the available labor pool. As discussed below,the use of statistical comparisons to detect
discrimination is well established in employment discrimination law. As long as these goals do
not operate as quotas,public entities can require contractors to make good-faith efforts to meet
these goals. See Public Contract Code § 2000(a)(2) (requiring a bidder to "make[] a good faith
effort, in accordance with the criteria [set forth in § 2000(b)], . . . to comply with the [MBE/WBE
participation goals]."); ef. 42 U.S.C. § 2000e-2(k)(1)(A)(i),$(i) (employment practices may be
unlawful if have disparate impact based on race, gender,national origin, or religion);Uniform
Selection Guidelines at 29 C.F.R. 1607.4(A)(employer obligation to keep detailed records to
assess impact of particular employment practices).
3. Examples of Other Programs Designed To Prevent Discrimination
Which May Survive Proposition 209's Implementation.
In the area of public employment, nothing in Proposition 209 prevents governmental
entities from setting employment goals based on statistical data, and requiring a varietz of race-
and gender-conscious outreach or recruitment programs where such goals are not met.
e The Ninth Circuit's recent decision in Monterey Mechanical, discussed above,raises a
question regarding whether affirmative action programs addressing employment discrimination
are subject to strict scrutiny under the Equal Protection Clause. Even if such programs are
COVERAGE OF PROPOSITION 209 9
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D.3
In the context of Title VII, it has long been clear that statistical disparities between tui
employer's employment of a protected group and the percentage of members of the protectol
group in the relevant labor pool may,absent explanation, establish intentional discrimination.
International Brotherhood of Teamsters v. United States, 431 U.S. 324, 339-43,n.20 (1977);9
Hazelwood Sch. Dist. v. United States, 433 U.S. 299,307-08 (1977)(statistics alone may even
establish discrimination). Statistics may also establish a prima facie case of discrimination
where a practice has an adverse impact upon a protected group,and may shift the burden of proof
to the employer to justify a particular practice. Albemarle Paper Co. v. Moody, 422 U.S. 405,
411 (1975). Cf. 42 U.S.C. § 2000e-2(k)(1)(A)-(B).
After statistical proof of disparate impact,the burden of justification shifts to the
employer. In cases of asserted intentional discrimination, the employer faced with such a
showing must either show that the statistics are incorrect or insignificant,or prove that other
nondiscriminatory factors explain the result. Teamsters,431 U.S. at.339-40,n.20. In adverse
impact cases, a statistical showing of disparate impact shifts the burden of proof to the employer
to establish that the practice in question is job-related and consistent with business necessity.
42 U.S.C. § 2000e-2(k)(l)(A)(i).
The approach of using a statistical disparity from an appropriate availability rate as a
"trigger" for race- and/or gender-conscious outreach programs or to require additional proof of
non-discrimination by the agency or manager making thehiring decisions would not violate
Proposition 209's ban on"preferential treatment . . . on the basis of race" Like the contracting
programs which were not found subject to strict scrutiny, such an approach does not mandate
preferential treatment, but rather establishes an evidentiary framework, consistent with Title VII
precedent,for assessing whether discrimination was likely involved.
subject to strict scrutiny,however,they may nonetheless be excluded from Proposition 209's
scope if they do not constitute"preferential treatment"based on race.
9 Such statistics,however,must be tailored to the particular market. In employment
cases, depending on the particular circumstances,the comparison might be between the
percentage of minorities in the appropriate labor market and the percentage in the position(s)at
issue, Wards Cove Packing Co., 490 U.S. 642,650-51 (1989),between the application rate for
minorities and the percentage in the position(s),see, e.g., Dothard v. Rawlinson,433 U.S. 321,
330(1977), or among the percentage of minorities in the population and in the positions al issue
and similar positions, Teat;tsters,431 U.S. at 338.
Moreover,to raise an inference of discrimination,the disparity between availability of
minority employees and the employer's work force must be statistically significant. Hazelwood,
433 U.S. at 308-09 n.14 (endorsing a standard deviation approach); Contreras v. City of Los
Angeles, 656 F.2d 1267, 1273 n.3 (9th Cir. 198 1)(differences must be at 0.05 level), cert.
denied, 455 U.S. 1021 (1982); Uniform Guidelines on Employee Selection Procedures, 29 C.F:R.
1607.4(D) (adverse impact is presumed if selection rate for protected group in question is less
than four-fifths, or 80%,of the selection rate for most favored group).
COVERAGE OF PROPOSITION 209 10
SEPTEMBER 4, 1997
Cana-�'dem w� D•3
Significantly,the Supreme Court in Teamsters, 431 U.S. at 339, n.20,rejected the
assertion that language in Title VII similar to Proposition 209 prohibited the use of this type of
statistical analysis as a basis for imposing liability. Title VII provides that"[n]othing contained
in this subchapter shall be interpreted to require any employer . . . to grant preferential treatment
to any individual or to any group because of the race . . . of such individual or group on account
of an imbalance which may exist with respect to the total number or percentage of persons of any
race . . .in any community, State, section,or other area,or in the available work force. . . ."
42 U.S.C. § 2000e6).
The Court rejected the notion that this statutory language prohibited the use of statistics
to demonstrate discrimination.
"The argument fails in this case because the statistical evidence was not offered or
used to support an erroneous theory that Title VII requires an employer's work
force to be racially balanced. Statistics showing racial or ethnic imbalance are
probative . . . only because such imbalance is often a telltale sign of purposeful
discrimination;absent explanation, it is ordinarily to be expected that
nondiscriminatory hiring practices will in time result in a workforce more or less
representative of the racial and ethnic composition of the population in the
community from which employees are hired."
Teamsters, 430 U.S. at 339-40 n.20.
Accordingly, governmental entities remain free to enact race-and gender-conscious
programs designed to prevent discrimination.
4. Race- and Gender-Based Programs Designed To Desegregate
Schools Survive Proposition 209's Implementation.
Because courts have held many school desegregation programs not to be subject to strict
scrutiny, such programs may also be exempt from Proposition 209's coverage.
a) Teacher Transfer Programs Survive Proposition 209.
Teacher reassignment programs clearly survive Proposition 209. Courts have almost
unanimously held that such programs are not subject to strict scrutiny. These programs thus will
remain unaffected by the Proposition.
In Kromnick v. School District of Philadelphia, 739 F.2d 894, 902 (3d Cir. 1984), cert.
denied,469 U.S. 1107(1985), for example,the court held that a race-based teacher assignment
desegregation program"create[d]no preference of the type usually associated with claims of
`reverse discrimination."' At issue in Kromnick was a policy that required each school to
maintain a faculty ratio of between 75%and 125% of the system-wide proportion of white and
black teachers. Four white teachers transferred pursuant to the policy brought suit, alleging that
the policy constituted an impermissible racial classification. The court found the policy to be
race-neutral. The court observed:
COVERAGE OF PROPOSITION 209 11
SEPTEMBER 4, 1997
P ,3
No case has suggested that the mere utilization of race as a factor,together with
seniority, school need, and subject qualification, is prohibited. Since the
classification is not preferential, it might most appropriately be reviewed for its
rational relationship to a legitimate,government objective,under which standard it
would be patently valid.
739 F.2d at 903.
Similarly, in Jacobson v. Cincinnati Board of Education,961 F.2d 100 (6th Cir. 1992),the
court held that a race-conscious teacher transfer policy did not establish a preference based on
race that required strict scrutiny. The court thus rejected"plaintiffs' contention that the policy
establishes preferences . . .that require us to examine the policy with strict scrutiny,"and applied
an intermediate level of scrutiny. Id at 102;see also Caulfield v. Board of Education, 632 F.2d
999, 1006(2d Cir. 1980)("[u]ntil an individual teacher alleges"a substantial harm beyond
objection to school assignment, even where the assignment is race based"there is nothing . . . to
trigger Bakke's" scrutiny), cert. denied, 450 U.S. 1030(1981);Zaslawsky v. Board of Education,
610 F.2d 661 (9th Cir. 1979)(rejecting equal protection challenge to voluntary—not court-
ordered--faculty integration plan and not applying strict scrutiny). But see Covington v.
Beaumont Independent Sch. Dist., 714 F. Supp. 1402, 1406 (E.D. Tex. 1989)(applying strict
scrutiny to a voluntary faculty assignment action).
It is thus clear that teacher transfer programs currently in existence will remain unaffected.
Moreover, cities should feel free to implement further programs.
b) Student Reassignment Programs May Survive
Proposition 209.
Although the issue is not as clear,many school desegregation programs may survive
Proposition 209. As early as Bakke,courts have reasoned that desegregation programs are not
subject to strict scrutiny because they do not operate to deny an individual a concrete bene lit. In
Regents of University of California v. Bakke,438 U.S. 265 (1978),the Court first addressed the
constitutionality of benign racial classification. The Court specifically distinguished race-
conscious school desegregation plans,holding that students were not deprived of an equal
opportunity for education:
[Bakke's] position is wholly dissimilar to that of a pupil bused from his
neighborhood school to a comparable school in another neighborhood in
compliance with a desegregation decree. Petitioner did not arrange for respondent
to attend a different medical school in order to desegregate Davis medical school;
instead, it denied him admission and may have deprived him altogether of a
medical education.
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�aitoiai 1lL IU:5U FAX 415 477 2365 DAM nJJv� l �iivi.
438 U.S. 265, 300 n.39 (1978)(Powell).10 See also Bakke v. Regents of University of California,
18 Cal. 3d 34,46-47 (1976) (recognizing same).
The Ninth Circuit has reasoned that those desegregation programs which do not operate
to deny any individual a benefit are not subject to strict scrutiny. Associated General
Contractors v. San Francisco Unified School Dist.,616 F.2d 1381, 1387 (9th Cir.),cert. denied,
449 U.S. 1061 (1980). The court recognized that school desegregation programs do not operate
to deny a benefit to any individual or group. In so finding, the court analogized to the difference
between a"stacked deck"and a"reshuffle program"of cards. In the former, a benefit goes to
one individual,while another is deprived of it. In the latter,everyone is provided the same
benefit. Id;see also Springfield Sch. Comm. v:Barksdale, 348 F.2d 261, 266 (1st Cir. 1965)("It
has been suggested that classification by race is unlawful regardless of the worthiness of the
objective. We do not agree. The defendants'proposed action [desegregating a racially
imbalanced school] does not concern race except insofar as race correlates with proven
deprivation of educational opportunity");" United States v. Paradise,480 U.S. 149, 187 n.2
(1987) (Powell, J. , concurring)(indicating that school desegregation decisions are not subject to
strict scrutiny). Indeed, the Ninth Circuit's own opinion appeared to recognize that race-and
gender-conscious programs which merely "reshuffle" benefits do not operate as a zero sum
game. Coalition for Economic Equity v. Wilson, 110 F.3d 1431, 1445 n.16.
10 Indeed, a concurrence in Richmond v. J.A. Croson Co.,488 U.S. 469(1989) seemed to
indicate that desegregation actions were not subject to strict review. See 488 U.S. at 524 (Scalia,
J., concurring in the judgment) ("In my view there is only one circumstance in which the States
may act by race to `undo the effects of past discrimination': where that is necessary to eliminate
their own maintenance of a system of unlawful racial classification. . . . This distinction explains
our school desegregation cases,in which we have made plain that States and localities sometimes
have an obligation to adopt race-conscious remedies.").
11 The issue,however, is not entirely free from doubt. The Court has held that"all racial
classifications, imposed by whatever federal, state or local governmental actor,must be analyzed
by a reviewing court under strict scrutiny." Adarand Constructors, Inc. v Pena, 515 U.S. 220,
227(1995). That case,however, did not involve segregation. See also Missouri v. Jenkim, 515
U.S. 70, 112(1995)(O'Connor, J.,concurring)("time and again,we have recognized the tunple
authority legislatures possess to combat racial injustice . . . . It is only by applying strict scrutiny
that we can distinguish between unconstitutional discrimination and narrowly tailored rem edial
programs that legislatures may enact to further the compelling governmental interest in
redressing the effects of past discrimination"). In the context of a school desegregation pkat,one
court recently noted that "tu]ntil the Supreme Court elects to furnish guidance as to the
appropriate level of scrutiny to `rase conscious' student enrollment provisions designed to
remedy obstinate historical racial discrimination,lower courts will be left to grapple on their own
with this thorny problem." Stanley v. Darlington County Sch. Dist.,915 F. Supp. 764, 775
(D.S.C. 1996);see also Ho by Ho v. San Francisco Unified Sch. Dist.,965 F. Supp. 1316, 1323
(N.D. Cal. 1997) (applying strict scrutiny to school desegregation plan,but noting uncertainty in
the law).
COVERAGE OF PROPOSITION 209 13
SEPTEMBER 4, 1997
Two recent out-of-circuit cases have suggested that strict scrutiny would not apply to
school desegregation cases. In Stanley v. Darlington County School District,915 F. Supp. 764
(D.S.C. 1996), for example,the court upheld a policy mandating a 50150 racial composition at a
magnet school, indicating(although not deciding)that the program did not operate as a racial
preference,but as a mere race-conscious remedy. There the parties had entered into a consent
decree,stipulating that a school was racially identifiable and that remedial measures were
required. The court, after a two-week trial,rejected the remedial measures proposed by the
parties and ordered that a county-wide magnet school be established at the previous racially-
identifiable school. Id. at 766. The district then submitted a proposal to the court,which
included a provision fora 50/50 racial balance.
In addressing the level of scrutiny applicable to the 50/50 magnet plan,the court reasoned
that it was"not entirely convinced that strict scrutiny necessarily applies to the specific,unique
magnet provisions at issue here: the 50/50 plan." Id. at 774. The court expanded: "as to the
50/50 plan,the court is unconvinced that it accords a preference in student enrollment based
solely on race because bc,th races are given equal opportunity to apply for the available magnet
school seats. Unlike the preference schemes considered in Adarand,Paradise and Wygant, the
50/50 plan does not endow any racial group with an advantage,nor inflict any burden on another
racial group." Id. at 775. The court reasoned that the plan could thus be construed as"race-
conscious"rather than "race-based." Id. The court;however, did not decide the applicable level
of scrutiny, as it found that the plan would satisfy even strict scrutiny. Id at 775-76. See also
Martin v. School Dist. of Philadelphia, 1995 U.S. Dist. LEXIS 1386 (E.D. Pa. 1995)(declining
to decide issue of whether strict scrutiny must be applied to school policy that would not al low
the transfer of a student where the school to which transfer is sought contains 65%students of
the same race as the transferee, or where school from which student is seeking transfer contains
35%or less students of transferee's race,reasoning that such policies may be race-conscious and
not race-preferential); McLaughlin v. Boston School Committee,No. 95-18803 WAG(D. Mass.
Aug. 22, 1996) (finding that strict scrutiny not applicable to merely race-conscious or race-
neutral—and not preferential--programs).
5. California School Districts Are Under a Constitutional Duty to
Desegregate.
Moreover,California schools may have a continuing and affirmative constitutional duty
to remedy de facto segregation. In Jackson v Pasadena City School District, 59 Cal.2d 8 76
(1963),the California Supirme Court held that a school board may have an affirmative duly to
alleviate de facto racial segregation in its public schools:12
[E]ven in the absence of gerrymandering or other affirmative discriminatory
conduct by a school board,a student under some circumstances would be entitled
12 Courts denote segregation caused by state action as"de jure,"whereas they denote
segregation produced by other factors as"de facto." See People ex rel. Lynch v. San Diego
Unified Sch. Dist., 19 Cal. App. 3d 252,261-62(1971),cert. denied,405 U.S. 1016(1972).
COVERAGE OF PROPOSITION 209 14
SEPTEMBER 4, 1997
to relief where, by reason of residential segregation, substantial racial imbalance
exists in his school. . . . [R)esidential segregation is in itself an evil which tends
to frustrate the youth in the area and to cause antisocial attitudes and behavior.
Where such segregation exists it is not enough for a school board to refrain from
affirmative discriminatory conduct. . . . [T]he right to an equal opportunity for
education and the harmful consequences of segregation require that school boards
take steps, insofar as reasonably feasible,to alleviate racial imbalance in schools
regardless of its cause.
Id at 881. Subsequent California Supreme Court decisions have confirmed this ruling. See San
F}ancisco Unified Sch. Dist.v. Johnson, 3 Cal. 3d 937,949(197 1)(interpreting Jackson as
completely nullifying necessity of distinguishing between de facto and de jure segregation);
Santa Barbara Sch. Dist. v. Superior Court, 13 Cal. 3d 315, 327 (1975) (holding portions of
Proposition 21 —which prevented schools from assigning students on the basis of race, creed or
color—to be unconstitutional because they would have prohibited school authorities from
carrying out their"constitutionally mandated task of rooting out de jure segregation").
The court re-affirmed its holding in Jackson in Crawford v. Board of Education, 17 Cal.
3d 280, 291 (1976) ("Crawford T'),explaining again that California school boards have a
constitutional obligation to take reasonable steps to alleviate de facto segregation in public
schools. See also Tinsley v. Palo Alto Unified Sch. Dist., 91 Cal. App. 3d 871, 892 (1979)
(extending the rationale of Jackson and its progeny to cases of interdistrict segregation). In
Crawford v. Board of Education, 113 Cal. App. 3d 633 (1980) ("Crawford IT'),aff'd, 458 U.S.
527 (1982), the court once again reaffirmed this holding. In Crawford 11, the court left
untouched the duty to take reasonable steps to alleviate de facto segregation,but did allow a
constitutional amendmen-r to stand which withdrew from the state court the ability to order
school boards to mandatorily reassign and transport pupils. The decision did not affect a school
board's ability to take the exact same steps.13 .
Because Proposition 209 amended the California Constitution,the validity of Jack,�on
and its progeny is in question. However,in California,a constitutional amendment"should not
be construed to effect the implied repeal of another constitutional provision." ITT World
Communications, Inc. v. City& County of San Francisco, 37 Cal. 3d 859, 865 (1985).
Construing the term"preferential treatment,"without more, to repeal the long-standing
constitutional mandate would be inconsistent with this fundamental rule of constitutional
interpretation.14
13 Although the court's decision allowed to stand a constitutional amendment that
withdrew one desegregation technique from the state court's arsenal of remedies available to
alleviate unintended non-purposeful segregation, it left all other techniques intact.
14 The precise contours of this duty are of course limited by the court's holdings. See .
Jackson, 59 Cal. 2d at 881 (duty to remedy de facto segregation by taking"reasonably feasible"
COVERAGE OF PROPOSITION 209 15
SEPTEMBER 4, 1997
vai iVi a1 1lD 11.VV CAA 41.7 4! ! GJOO DAA AJJVV1A11V1.
III. RACE-AND GENDER-CONSCIOUS PROGRAMS THAT ARE
NECESSARY TO KEEP OR RECEIVE FEDERAL FUNDS PURSUANT TO
TITLE VI SURVIVE PROPOSITION 209'S IMPLEMENTATION.
Proposition 209 explicitly exempts programs that are necessary to "establish or maintain
eligibility for any federal program,where ineligibility would result in a loss of federal funds to
the state" Cal. Const. art. 1, § 31(e). In some instances,Title VI of the Civil Rights Act
("CRA')of 1964 requires a state agency or municipality to take affirmative action. Failure to do
so may result in the loss of federal funds. Thus race-and gender-conscious programs
promulgated because they are required by Title VI or its regulations will survive
Proposition 209's implementation.
Title VI prohibits discrimination in federally-assisted programs. Section 601 of Title VI
provides that"[n]o person in the United States shall,on the ground of race,color or national
origin,be excluded from participation in,be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial assistance." See 42
U.S.C. §2000(d). The provisions of Title VI itself are"coextensive"with liability under the
Equal Protection Clause of the Fourteenth Amendment. See Guardians Ass'n v. Civil Service
Comm'n,463 U.S. 582, 610-11 (Powell,J. concurring in the Judgment) (1983).
Section 602 directs each federal agency that is empowered to distribute federal funds to
effectuate the anti-discrimination mandate of Title VI by issuing "rules and regulations"
consistent with Title VI. See 42 U.S.C. § 2000(d)(1). Federal agencies have the discretion to
promulgate regulations that require affirmative action where facially neutral policies have
disparate impact on women or minorities, even in the absence of intentional discrimination.Is It
is these regulations which require city and county departments and agencies, and universities,to
take affirmative action or to suffer a loss of federal funding.
Many federal agencies have promulgated mgulations'which require affirmative action if
the entity receiving funds has discriminated in the past:
In administering a program regarding which the recipient has previously
discriminated against persons on the ground of race,color, or national origin,the
recipient must take affirmative action to overcome the-effects of prior
discrimination.
steps); Crawford 1, 17 Cal. 3d at 3 03-04 (California Constitution does not mandate achievement
of any particular racial composition).
15 The Supreme Court has found that the statutory scheme which permits agencies to
require affirmative action to remedy policies having a disparate impact on women or minorities
is constitutional. See Guardians,463 U.S. at 610-11 (Powell,J. concurring);Alexander v-
Choate, 469 U.S. 287,292-94 (1985); see also Larry P. v. Riles, 793 F.2d 969,981-83 (9th Cir.
1984)(applying discriminatory effect or impact analysis to the Title VI claims).
COVERAGE OF PROPOSITION 209 16
SEPTEMBER 4, 1997
C+ .'d..P.�. 01
15 C.F.R. § 8.4(b)(6)(i) (1997)(Commerce);22 C.F.R. § 141.3(b)(5.1)(1997) (State); 24 C.F.R.
§ 1.4(b)(3)(1997)(Housing& Urban Development);28 C.F.R. § 42.104(b)(6)(i)(1997)
(Justice); 29 C.F.R. § 31.3(b)(6Xi) (1997) (Labor); 34 C.F.R. § 100.3(b)(6)(i) (1997)
(Education); 38 C.F.R. § 18.3(b)(6)(i)(1997)(Veterans Affairs); 43 C.F.R. § 17.3(b)(4)(i) (1997)
(Interior);45 C.F.R. § 80.3(bX6)(i)(1997)(Health&Human Services). (Emphasis added.)
The Department of Transportation regulations are even stronger.
Where prior discriminatory practice or usage tends,on the grounds of race . . . to
exclude individuals from participation in,to deny them the benefits of, or to
subject them to discrimination under any program or activity to which this part
applies,the applicant or recipient must take affirmative action to remove or
overcome the effects of the prior discriminatory practice or usage. Even in the
absence of prior discriminatory practice or usage,a recipient in administering a
program or activity to which this part applies, is expected to take affirmative
action to assure that no person is excluded from participation in or denied the
benefits of the program or activity on the grounds of race, color, or national
origin.
49 C.F.R. § 21.5(b)(7) (1997) (emphasis added).
Under the regulations, it is clear that entities which receive federal funds are under a
statutory obligation to prevent discrimination. Moreover, where there is evidence of prior
discrimination, at some point the duty to take affirmative action (or lose federal funding) is
triggered. The precise contours of when that duty begins,however, are not clear. This section
attempts to provide guidance as to when that duty is triggered.
A. Who Is Required To Take Affirmative Action?
Title VI applies only to a"program or activity receiving Federal financial assistance"
Before the passage of the Civil Rights Restoration Act("CRRA")in 1988,courts held that
Title VI applied only to the specific program or activity specifically supported by federal funds.
See Grove City College v. Bell,465 U.S. 555, 570-76 (1984)(Construing Title IX case, Court
held`program or activity"to mean only those entities that actually received federal funds.).
However, the CRRA amended Title VI and defined"program or activity"much more
expansively-16
The CRRA amended Title VI to define a"program or activity"as all of the operations
of--
16 Title VI provides a means for a private litigant to challenge the practices of state and
local agencies so long as the defendant agencies receive aid under some federal program.
Guardians,463 U.S. at 610-11 (Powell, J. concurring).
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09/16/97 TUE 11;03 FAX 415 477 2388 BAR ASSOCIATION Z020
(1) (A) a department, agency,special purpose district,or other instrumentality
of a State or of a local government; or
(B)the entity of such State or local government that distributes,such
assistance and each such department or agency (and each other State or local
government entity)to which the assistance is extended,in the case of assistance to
a State or Iocal government;
(2)(A)a college,university,or other postsecondary institution, or a public
system of higher education; or
(B)a local educational agency(as defined in section 14101 of the Elementary
and Secondary Education Act of 1965 [20 USCS § 8801]), system of vocational
education, or other school system;
20 U.S.C. § 1687.
In accord with the language of the CRRA;and the intent of Congress,courts have given
Title VI an expansive reading. Where under Grove Title VI was applied only to the specific
program supported by funds,courts now apply Title VI requirements to the entirety of any state
agency,district, or department that had a program supported by federal funding. Thus, as held
by the Ninth Circuit, the receipt of federal assistance by any student or portion of a school
subjects the entire school to Title VI coverage. See Radcliff v. Landau, 883 F.2d 1481, 1483 (9th
Cir. 1989). Similarly,in Association of Mexican American Educators v. California, 836 F.
Supp. 1534, 1544 (N.D. Cal. 1993), the court held that the California Commission on Teaching
Credentials ("CTC")is subject to Title VI because the CTC is part of the California public
school system which receives federal financial assistance.17
Although the regulations do not define a municipality as a"program or activity,"should
any municipality receiving federal assistance fail to comply with Title VI requirements,then it
may find itself as a defendant in a lawsuit. Although some circuits have held that a municipality
or state is not a proper Title VI defendant,the Ninth Circuit has never issued such a holding.
Indeed, the Northern District of California(Judge Orrick)reviewed the legislative history of
Title VI,as well as the language of the statute, and concluded that the state could be a defendant
in a suit brought based upon the discriminatory practices of the California Commission on
37 Other jurisdictions have agreed that Title VI applies broadly. See Leake v. Long Island
Jewish Medical Center,695 F. Supp. 1414, 1416 (E.D.N.Y. 1988), (the statute mandates that
Title VI apply on an institution-wide basis,instead of only in connection with a limited program
activity actually receiving federal funds)af'''d, 869 F.2d 130(2d Cir. 1989);Meyers by Meyers v.
Board of Education, 905 F. Supp. 1544, 1574 n.37(D. Utah 1995)(holding that a"local
educational agency" is defined to include local school boards and is covered under Title VI when
the school district receives federal funds;this holds even when the specific school board accused
of discrimination has not received any federal funds).
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Teaching Credentials("CTC"). Association of Mexican-American Educators, 836 F. Supp. at
1542-43. In Mexican American Educators, the state argued that it could not be a defendant in a
Title VI lawsuit alleging discriminatory practices by the CTC because the state is not a"program
or activity"as specified in Title VI. The court rejected the state's limited reading of Title VI and
concluded that the state could be sued"so long as it is responsible for the Title VI violation."18
Id. at 1543. Thus,a violation of Title VI by any city program or entity receiving federal
assistance,no matter how small the assistance,may result in the city being a defendant.
Judge Orrick's opinion also indicates that the legislative history of the CRRA could be
interpreted as placing the whole state under Title VI requirements so long as the state receives
federal money and then distributes the money to one of its agencies. In other words,under this
broad interpretation,a whole city or state, in its entirety,could be required to operate within the
guidelines of Title VI if the state or city obtains and then distributes federal funds to even one
agency or program. See Association of Mexican American Educators, 836 F. Supp. at 1542.
However, it should be noted that Judge Orrick did not decide this issue—and we have found no
cases where Title VI has been applied so broadly. Thus, there is some uncertainty as to whether
Title VI would apply to an entire city or just the departments which receive federal funds.
B. When Is The Duty To Enact Affirmative Action Programs Triggered?
1. The Title VI Regulations are Triggered Where There Is a Firm
Basis in Evidence That Race-and Gender-Conscious Programs
Are Necessary To Cure the Effects of Active Prior Discrimination
by a City or Municipality.
The clearest case s-here an entity would be required to take action pursuant to Title VI
regulations is where there is a firm basis in evidence that the entity has actively discriminated on
the basis of race or gender,that is, where the Richmond V. J.A. Croson Co.,488 U.S.469 (1989),
standard has been meet.
In Croson,the Court recognized that there is a compelling governmental interest in
remedying past discrimination if the governmental actor actively perpetrated discrimination. The
court found"the State has the power to eradicate racial discrimination and its effects in both
public and private sectors,and the absolute duty to do so where those wrongs were caused
intentionally by the State itself." Id. at 518 (Kennedy,J.,concurring). Indeed, a state or
municipality,"when presented with evidence of its own culpability in fostering or furthering race
18 Other jurisdictions have reached the opposite conclusion. See Hodges v. Public Bldg.
Comm'n, 873 F. Supp. 128, 131 (N.D. 111. 1995)("the City is a municipality and, as such, it does
not fit within the definition of"program or activity"for purposes of Title VI"and is not a proper
defendant); see Schroeder v. Chicago, 715 F. Supp. 222,225 (N.D. Ili. 1989)(nothing in the
CRRA"amendment's legislative history suggests that Congress contemplated classifying an
entire municipality like the City of Chicago as a`program or activity"';city is thus not a proper
defendant).
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discrimination,might well be remiss if it failed to act upon such evidence." Coral Const. Co. v.
King County,941 F.2d 910, 921 (9th Cir. 1991), cert. denied, 502 U.S. 1033 (1992).
Because the regulations promulgated pursuant to Title VI define discrimination more
broadly than the Equal Protection Clause(practices which have a disparate impact upon
minorities may be unlawful even if there is no intent to discriminate),Alexander v. Choate,469
U.S. 287,293 (1985)(In Guardians, we"held that actions having an unjustifiable disparate
impact on minorities could be redressed through agency regulations designed to implement the
purposes of Title VI"),there is a strong argument that where there is strong evidence of active
discrimination by the governmental entity involved under the Croson standards,a duty to act
arises under Title VI regulations.
IV. GENDER-CONSCIOUS PROGRAMS THAT ARE NECESSARY TO KEEP
OR RECEIVE FEDERAL FUNDS PURSUANT TO TITLE IX SURVIVE
PROPOSITION 2091S IMPLEMENTATION.
Title IX of the Education Amendments of 1972("Title DC),20 U.S.C. § 1681, et seq.,
also prohibits all educational programs and institutions that receive federal funds from
discriminating on the basis of sex. It extends to the employment practices of covered educational
institutions and programs. See, e.g., North Haven Bdd ofEduc. v. Bell, 456 U.S. 512 (1982)
(finding executive agency has authority to regulate employment discrimination under Title IX).
As under Title VI,federal agencies have the discretion to promulgate regulations that require
affirmative action even in the absence of intentional discrimination.
In addition, as in Title VI, Title IX applies broadly. If any arm of a covered educational
institution receives federal funds,that institution as a whole must comply with Title IX. 20
U.S.C. § 1687. Indeed,Title IX applies to private undergraduate institutions that enroll students
who receive federal funds for tuition, even if those institutions accept no direct federal funding.
Grove City College v. Bell, 465 U.S. 555, 569(1984).
The implementing regulations require that affirmative action be taken where the Director
of a department's civil rights office finds a policy has had an adverse impact on women:
If the [Director of the Department's Office of Civil Rights as the Secretary) finds
that a recipient has discriminated against persons on the basis of sex in an
education program of activity, such recipient shall take such remedial action as
the Director deems necessary to overcome the effects of such discrimination.
45 C.F.R. § 86.3(a)(Department of Health and Human Services). See also 7 C.F.R. § 15a.3
(Department of Agriculture)(covering Youth Conservation Corps and the National School
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SEPTEMBER 4, 1997
Lunch Program); 10 C.F.R. § 1040.7(Energy)(covering scientific research and development
programs); 45 C.F.R. § 86.3(a) (Public Welfare).19
Other regulations prohibit a recipient of federal funds from
administer[ing]or operat[ing] any test or other criterion for admission which has a
disproportionately adverse effect on persons on the basis of sex unless the use of
such test or criterion is shown to predict validly success in the educational
program or activity in question and alternative tests or criteria which do not have
such a disproportionately adverse effect are shown to be unavailable.
34 C.F.R. § 106.21(b)(2). See also 7 C.F.R. § 15a.2I(b)(2)(Agriculture); 10 C.F.R.
§ 1040.31(b)(2)(Energy); 45 C.F.R. § 86.21(b)(2)(Public Welfare).2'
Because Proposition 209 exempts race-and gender-conscious programs which are
necessary to keep or obtain federal funding,and because failure to comply with Title IX leads to
the termination of federal funding, 20 U.S.C. § 1682,gender-conscious programs required by
Title IX will not be covered by the Proposition. The analysis as to Title IX's applicability is
likely to be similar to that as to Title VI's. Jelduco v. Pearce, 30 F.3d 1220 (9th Cir. 1994).
V. RACE-AND GENDER-CONSCIOUS PROGRAMS MANDATED BY
TITLE VII SURVIVE PROPOSITION 2091S IMPLEMENTATION.
In its decision overturning the district court's injunction,the Ninth Circuit held that
Title VII did not by its plain language preempt Proposition 209. Coalition for Economic
Equity v. Wilson, 110 F.3d 1431, 1448 (9th Cir. 1997)(J. O'Scannlain). The court,however,
found that Title VII would preempt state law where there is an actual conflict with federal law,
i.e., an unlawful employment practice under Title VII. Id. at 1447. Upon a close reading, the
Ninth Circuit's opinion provides that where elimination of affirmative action programs would
create an"actual conflict"with Title VII,the programs survive Proposition 209.
Proposition 209 by its plain language exempts any existing consent decree or court order
which is in force as of the effective date of the Proposition. In addition, affirmative action
19 The regulations further provide: "A recipient to which this subpart applies shall not
discriminate on the basis of sex in the recruitment and admission of students. A recipient may be
required to undertake additional recruitment efforts for one sex as remedial action pursuant to
[the above listed policy]." 34 C.F.R. § 106.23(a)(Education); 7 C.F.R. § 15a.23(a)
(Agriculture); 10 C.F.R. § 1040.33(a)(Energy); 45 C.F.R. § 86.23(a) (Public Health).
20 Title IX uses the same burden-shifting approach as Title VII in cases of disparate
impact in educational testing or employment. Sharif v. New York State Educ. Dept, 709
F. Supp. 345, 360-61 (S.D.N.Y. 1989). A similar test is used for cases addressing equal
opportunity in athletic programs. Cohen v. Brown Univ., 991 F.2d 888, 897(1st Cir. 199.0.
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programs which are "necessary," "essential"or`required"to remedy a violation of Title V)I will
still be valid, arguably even in the absence of court order.21
Certainly,where a court finds that a race- or gender-conscious program is necessary to
comply with Title VII,the resulting program will not be barred by Proposition 209. For
example,the Ninth Circuit has held that affirmative action was necessary to prevent a disparate
impact where a company refused to remedy violations of Title VII. Eldredge v. Carpenters
46 N. Cal. Counties Joint Apprenticeship& Training Comm., 94 F.3d 1366 (9th Cir. 1996).
There,the court found that a Joint Apprenticeship and Training Committee("JATC'),a labor-
management organization,had been using a two-tiered selection process which had a disparate
impact upon women,.and that an appropriate remedy should be implemented. Despite repeated
decisions by the circuit that the JATC needed to remedy the violations,the JATC continued to
ignore the affirmative action proposal and retain its discriminatory"hunting license"progrun.
Id. at 1371. Finally, in light of the JATC's egregious and obstinate conduct,the court held that
affirmative action was necessary and remanded with instructions to adopt a 20%affirmative
action program. Id. at 1312.
Similarly,in Local 28 of Sheet Metal Workers'International Association v. EEOC, 478
U.S. 421,448 (1986),the Court held that in some instances, "it may be necessary to require the
employer or union to take affirmative steps to end discrimination effectively to enforce
Title VII." Where,for example,"an employer or union has engaged in particularly long-standing
or egregious discrimination [in contempt of court] . . . requiring recalcitrant employers or unions
to hire and to admit qualified minorities roughly in proportion to the number of qualified
minorities in the work force, [affirmative action] may be the only effective way to ensure the full
enjoyment of the rights protected by Title VII." Id. at 448-49.
Other cases have found an affirmative duty to act in the absence of such egregious
conduct. One court ordered defendant to"take affirmative steps for a period of two years to
attract minority tenants to his buildings"after a trial finding that defendant had failed to show
-available apartments to African-American renters. Cabrera v Jakabovitz,24 F.3d 372, 393 n.20
(2d Cir.), cert. denied, 513 U.S. 876 (1994).
21 The Departmentof Justice and the EEOC have sought affirmative action remedies by
court order or consent decree in the following cases: Local 28 of Sheet Metal Workers'Int 7
Ass'n. v. EEOC, 478 U.S. 421,466 (1986) (citing United States v City of Alexandria, 614 F.2d
1358 (5th. Cir. 1980); United States v. Lee Way Motor Freight, Inc., 625 F.2d 918 (10th Cir.
1979);EEOC v. Contour Chair Lounge Co., 596 F.2d 809(8th Cir..1979); EEOC v. American
Tel. & Tel. Co., 556 F.2d 167 (3d Cir. 1977),cert. denied,438 U.S. 915 (1978); United States v.
Masonry Contractors Assn, 497 F.2d 871 (6th Cir. 1974); United States v. International
Brotherhood of Electrical Workers, 472 F.2d 634 (6th Cir. 1973); United States v. Wood, Wire&
Metal Lathers International Union, 471 F.2d 408 (2d Cir.),cert. denied,412 U.S. 939(1973);
and United States v. Ironworkers Local 86, 443 F.2d 544, 548 (9th Cir.), cert. denied,404 U.S.
984 (1971)).
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Finally, affirmative action programs implemented pursuant to a court-approved consent
decree settlement under Title VII may be protected from a Proposition 209 challenge. Consent
decrees may incorporate a duty of a defendant to take affirmative action to remedy past
violations. Regents of the University of California v. Bakke,438 U.S. 265, 301-02&nAl (1978)
(A consent decree may properly include provisions requiring the defendant to take affirmative
action rectifying the effects of past discrimination). To the extent the decree is based on a
finding that the affirmative action was necessary to remediate the effects of past discrimination,
see, e.g.,Local 28,478 U.S. at 449-50("even where the employer or union formally ceases to
engage in discrimination,informal mechanisms may obstruct equal employment opportunities.
An employer's reputation for discrimination may discourage minorities from seeking available
employment");Stuart v. Roache, 951 F.2d 446(1st Cir. 1991), cert denied, 504 U.S. 913 (1992)
(promotions which perpetuate prior discriminatory hiring may require affirmative action), the
decree may override Proposition 209.
VI. CONCLUSION
It is likely that some of the types of programs discussed in this paper will be challenged
by those who wish to interpret Proposition 209 very restrictively. It is not possible to reach any
final conclusions about any particular program without analysis of the specific facts and
circumstances. There are,however, strong legal arguments for concluding that Proposition 209
permits California municipalities and state agencies to continue many kinds of affirmative action
programs in existence, and to create new affirmative action programs in the future.
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APPENDIX A
The Proposition further specifies its reach and its limits are further delineated as
follows:
(a)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.
(b)This section shall apply only to action taken after the section's effective date.
(c)Nothing in this section shall be interpreted as prohibiting bona fide
qualifications based on sex which are reasonably necessary to the normal
operation of public employment,public education,or public contracting.
(d)Nothing in this section shall be interpreted as invalidating any court order or
consent decree which is in force as of the effective date of this section.
(e)Nothing in this section shall be interpreted as prohibiting action which must be
taken to establish or maintain eligibility for any federal program, where
ineligibility would result in a loss of federal funds to the state.
(f)For the purposes of this section, "state" shall include, but not necessarily be
limited to,the state itself, any city, county,city and county,public university
system, including the University of California, community college district,
school district, special district, or any other political subdivision or
governmental instrumentality of or within the state.
(g)The remedies available for violations of this section shall be the same,
regardless of the injured party's race, sex,color, ethnicity,or national origin,
as are otherwise available for violations of then-existing California
antidiscrimination law.
(h)This section s .d! be self-executing. If any part or parts of this section are
found to be in conflict with federal law or the United States Constitution,the
section shall be implemented to the maximum extent that federal law and the
United States Constitution permit. Any provision held invalid shall be
severable from the remaining portions of this section.
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