Op-ed: ‘AG’s Prop 209 stance in sync with Constitution’

The following op-ed, titled “AG’s Prop 209 stance in sync with Constitution,” by Dennis Herrera, Eva Paterson and Oren Sellstrom was published in The Recorder today.

The Pacific Legal Foundation continues its assault on equal opportunity and fairness by attacking the California state Department of Justice’s brief to the California Supreme Court on the constitutionality of Prop. 209 (“AG Takes Fire on Prop 209,” May 11).

The Foundation employs hyperbole to counter the arguments posed by the Attorney General, when in fact his letter brief only outlined the specific circumstances when article I, section 31 of the California Constitution (Prop. 209) would be misaligned with the protections afforded by the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.

The Attorney General was correct in questioning whether Prop. 209 serves a compelling governmental interest, saying in his letter that “there appears to be no factual basis to support a governmental interest in denying preferences that are permissible under the Fourteenth Amendment.”

“Ironically,” continued the letter brief in Coral Construction Inc. v. City and County of San Francisco, S152934, “by effectively disadvantaging racial minorities and women in the political process, without an evident compelling governmental reason for doing so, section 31 seems to accomplish the very evil it purported to eliminate, viz. racial and gender discrimination.”

We believe that Prop. 209 is invalid on its face, and that this was clear from the moment it was passed. But the experience of California since the proposition’s passage demonstrates even more clearly how the measure has distorted the political process by placing remedial legislation out of the reach of minorities and women, and the devastating effect that this has had on California as a whole.

Prop. 209 Created More Barriers to Opportunity

In the public contracting arena, minority- and women-owned businesses have been decimated by Prop. 209. Without the ability to appeal to their local or state representatives to enact legislation to remediate demonstrated discrimination and exclusion, minority- and women-owned businesses have seen a return to the “old boys network” where majority-owned firms monopolize virtually all of the contracting work and often do not even allow minority- and women-owned firms to compete for contracting opportunities.

A comprehensive study of the California Department of Transportation’s contracting showed that after passage of Proposition 209, minority businesses experienced a greater than 50 percent reduction of total awards and contracts on Caltrans projects, translating into millions of dollars in lost revenues.

Two-thirds of the certified transportation construction minority businesses that existed in California in 1996 are out of business. Women-owned businesses have been similarly adversely affected, experiencing a 40 percent decline in Caltrans contract dollars over the past decade.

Prop. 209 devastated other arenas as well. The repeal of inclusive admissions policies in the University of California system has led to dramatic decreases in under-represented minority student enrollment, particularly at the flagship campuses of UC Berkeley and UCLA. In the fall of 2006, the freshman class at UCLA had only 96 African-American students, the lowest number since the early 1970s.

The situation at the State’s graduate schools is equally bleak. Entering Black law students at Berkeley, Davis and UCLA in 2005 comprised less than three percent of the entering class, far below their enrollment levels in 1970 (let alone in the early 1990s). Latino enrollment at these law schools likewise dropped by nearly 50 percent in the wake of Prop. 209. At the UC medical schools, Prop. 209 led to a 43 percent drop in underrepresented minority enrollment between 1995-1996 and 2001-2002.

These numbers are troubling on many different levels. For individual minority students, they mean fewer educational opportunities overall and increased feelings of isolation for those who find themselves in non-diverse educational settings. On a broader level, these declines mean that many UC campuses are no longer even close to reflective of California as a whole. This in turn undermines one of the primary missions of the taxpayer-funded UC system – to train the state’s future leaders.

Prop. 209 Violates Equal Protection Principles

Under the precedent that the U.S. Supreme Court set forth in Washington v. Seattle School Dist. No. 1 and Hunter v. Erickson, Prop. 209 clearly violates federal equal protection principles by making beneficial race- and gender-based legislation more difficult to enact than similar legislation benefiting other groups.

Whereas, for example, disabled individuals or veterans or other groups may all petition their local government to enact laws to even out the playing field, minorities and women in California cannot. Their only recourse to achieve such legislation is to go to “the most inaccessible political level” and to seek a state constitutional amendment overturning Proposition 209.

Prop. 209 thus unquestionably reallocates political power in a manner that operates to the disadvantage of minorities and women: precisely the type of “political structure” distortion that the U.S. Supreme Court has held violates federal equal protection principles.

The real-world impact of Prop. 209 ‘s distortion of equal protection principles is profound and is felt every day in neighborhoods and communities throughout California. These decreases in opportunity highlight how severely Prop. 209 has skewed the political structure of the State at a time when California itself is becoming increasingly diverse.

Attorney General Jerry Brown’s brief illuminates for the Supreme Court a sound legal foundation for eliminating Prop. 209, which has pushed disadvantaged groups farther away from equal opportunity.

Dennis Herrera is city attorney of the City and County of San Francisco, which is the appellant in the Coral Construction case. Eva Paterson is co-founder and president of the Equal Justice Society, which joined an amicus curiae brief in the case. Oren Sellstrom is associate director of the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, which filed an amicus brief on behalf of the Coalition for Economic Equity.

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