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California’s Quota Commandoes Are Still Winning Victories By: Harold Johnson
FrontPageMagazine.com | Thursday, October 17, 2002

What a difference six years doesn’t make. As the November elections approached in 1996, a fierce fight raged over the "California Civil Rights Initiative" – Proposition 209 – a ballot initiative to forbid race preferences in state and local government.

Six autumns later, the fight to implement Prop. 209's vision of fairness and equal treatment goes on. However, the battle has shifted to the courtroom, as the measure’s supporters try to get public officials to obey the law.

In some parts of the Golden State you could be forgiven for not realizing that Prop. 209 triumphed at the polls. Even though its ban on racially skewed initiatives in contracts, hiring and schooling is now part of the state constitution, playing favorites by color remains official policy in some of California’s largest bureaucracies. The past half decade has offered a protracted tutorial in the Left’s disdain for law and democracy when they collide with ideology.

In one outpost of defiance – San Francisco – officials are toasting their success late last month in derailing a court challenge to their systematic discrimination against white males in awarding public-works contracts. The scheme gives a 10 percent "bid discount" to contracting firms owned by minorities or women. In other words, the city pretends that a bid from a black, Latino or woman contractor is 10 percent below its true price. Meanwhile, bids from men who happen to be white are reviewed at full cost.

How could such aggressive bias survive when Prop. 209 says government "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 ... public contracting"? Procedural ploys and a friendly judge won the day for San Francisco’s quota commandoes. City lawyers told the court that the plaintiff – Coral Construction, a company that builds signs – would no longer be affected by the affirmative action ordinance because the city had finished seeking bids for new signs at the refurbished San Francisco International Airport. This was good enough for Superior Court Judge A. James Robertson II, who ruled that Coral did not have standing to sue because it would not be "imminently injured" by the law.

Coral, which had already lost a contract because of the city’s preference for minority-owned firms, will file an appeal. But San Francisco may have bought itself years to continue dispensing racial patronage.

The Bay Area isn’t the only place where politicians and bureaucrats close their eyes to their legal duty to be color blind. Los Angeles County, for instance, still publishes a "goals and timetables" schedule for hiring nonwhites and women on county contracts — ("Goals for minority participation for each trade - 28.3 percent; goals for female participation for each trade - 6.9 percent") – so managers are on notice that their personnel decisions are monitored for racial and sexual correctness.

At the Sacramento Municipal Utility District ("SMUD"), contractors get bonus points on their bids if they’re of the desired color or gender. The discrimination comes with a twist: In prime contracts, preferences go to blacks and Latinos but not Asians, while in subcontracts Asians and blacks, but not Latinos, receive official favoritism. The program was ruled unconstitutional by a Superior Court judge, but SMUD has refused to abandon it while pursuing an appeal.

Public education is not immune from violations of Prop. 209. School districts in Pasadena and Berkeley have used race as a factor in deciding which students can attend magnet schools.

The Los Angeles Unified School District uses race in making teacher assignments. Jim Friery, a Van Nuys High School physical-education teacher, discovered this policy when he tried to apply for a position at a nearby magnet school three years ago. He learned that he wasn’t eligible because he’s white and the school already had enough white teachers. "You’re of the wrong ethnic origin," his principal informed him. Friery headed to court, but Federal Judge Nora Manella, a former U.S. attorney for Los Angeles under the Clinton Administration, didn't see what he was fussing about. Racially based restrictions on teacher transfers are perfectly permissible, she ruled, if the aim is to "balance" the races at individual schools.

Besides, she added, even if Friery was denied a new job merely because of his color, he wasn’t really harmed because his current job pays as much. The echo of "separate but equal" in her words apparently escaped the judge.

Several state courts, including the California Supreme Court, have applied Prop. 209 forcefully to strike down government programs that stacked the deck based on race. But these rulings only make it more astonishing that bald-faced defiance of Prop. 209 continues in some major programs and bureaucracies.

It seems the perpetrators have nothing to fear from California’s top law-enforcer. Democratic Attorney General Bill Lockyer has not filed a single enforcement action against a Prop. 209 scofflaw. In fact, he personally argued before the state Supreme Court in favor of San Jose’s racially biased contracting program (the court struck it down anyway), and his spokesman told the San Francisco Chronicle last year that the AG’s office was still using racial and gender "goals" in hiring and promotion.

Little surprise, then, that Lockyer hasn’t questioned the University of California’s suspicious new formula for sifting applications from high-school seniors. This "comprehensive" review of applicants to UC’s individual campuses downplays academic performance while stressing subjective "life challenges" such as poverty, being a shooting victim or being raised by a single parent. In unguarded moments, more than one UC official has hinted that the aim is to bring back quotas – in camouflage.

After San Francisco’s successful defense of race preferences last month, a giddy response came from "Americans for a Fair Chance" (AFC), an alliance that includes the NAACP Legal Defense and Educational Fund, Inc., the Mexican American Legal Defense and Educational Fund, the Lawyers Committee for Civil Rights Under Law and the National Women’s Law Center. AFC saluted the City by the Bay for "valiantly defending this program."

"[A]ffirmative action – even in California – is alive and well," crowed the press release.

It is all a reminder that advocates of equal rights, and believers in the rule of law, face opponents in government and academia who don’t play by the same rules, or indeed by any rules. The 1996 election didn’t end a struggle, it launched one. For Prop. 209's supporters, the fight for compliance – the battle to make sure no one is treated less equally based on sex or skin color – is just getting started.

Harold Johnson is an attorney with the Pacific Legal Foundation.

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