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Law Office Management

Nov. 2, 2006

Milestones: Ten Years After Prop. 209

The ten-year anniversary of the proposition to ban race- and gender-based preferences in public contracting, employment, and education. By Nina Schuyler

By Nina Schuyler
      This year marks the tenth anniversary of one of the most controversial measures placed before California voters—Proposition 209, which amended the state's constitution to ban race- and gender-based preferences in public contracting, public employment, and public education.
      To date, Prop. 209 has been enforced almost single-handedly by the Pacific Legal Foundation. "What is really surprising to us is that the attorney general, the highest law enforcement officer in our state, has not brought one case," says Sharon Browne, PLF's principal attorney, who has led the organization's litigation efforts on behalf of Prop. 209 enforcement. "We've had significant victories, but it seems the total enforcement process has been placed on our shoulders."
      According to Browne, PLF's most important win was in 2000, with Hi-Voltage Wire Works, Inc. v. City of San Jose (24 Cal. 4th 537). "That's the landmark case in which the California Supreme Court interpreted Prop. 209 and used the plain and ordinary language of the constitutional provision," says Browne. The court interpreted Prop. 209 broadly, declaring that it outlawed not just quotas but also race- or sex-based "outreach" and "goals and timetables," because they also gave preferences based on race or sex.
      After that case, legal scholars still debated whether Prop. 209 applied to public education, grades K12. PLF appeared to win that debate in 2002 with Crawford v. Huntington Beach Union High School District (98 Cal. App. 4th 1275). The school district had used a policy whereby students seeking to transfer from one high school to another were denied if they were of the wrong race or ethnicity for the purposes of racially balancing the schools.
      "PLF is fighting a noble battle on this issue," says Bruce Crawford, the plaintiff in the case. "They saw this case through to the end."
      After Crawford, PLF felt there was no legal room for government agencies to refuse compliance with Prop. 209. But Browne soon found herself back in the courtroom over a loophole in the law that allows state government agencies to give preference on the basis of race or gender if such preferences are necessary to secure federal funding. What remained unclear was how much evidence a state agency needed to show that federal funding was a genuine concern. In C&C Construction, Inc. v. Sacramento Municipal Utility District (122 Cal. App. 4th 284 (2004)), the court ruled that the state agency can't speculate about what the federal government requires for a program; the agency needs specific evidence.
      The fight isn't over: PLF currently has five active cases involving Prop. 209. Says Browne, "We still find bureaucrats who have their own political agendas and ignore the law."

Megan Kinneyn

Daily Journal Staff Writer

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