Harold Johnson- Columnist
Johnson is an attorney with Pacific
Legal Foundation. A Sacramento-based public-interest
law firm, PLF has a long history of litigating for tax restraint,
including in support of Proposition 13 following its enactment
Johnson represents one of the Sea Scouts challenging Berkeley's
before the California Supreme Court. Mark S. Pulliam, a Pacific
Legal Foundation trustee, is an attorney in San Diego with sons
in the Boy Scouts.
So What If It’s in the Constitution-San Francisco Officials Won’t
[Harold Johnson] 8/6/04
They used to say there was “no law west of the Pecos.” These
days, when it comes to government’s duty not to discriminate,
you could say there’s “no law west of the Bay Bridge” — the
bridge to San Francisco.
Racial favoritism — forbidden by the California Constitution — is
official policy in the City by the Bay. Consider public-works
contracts. When San Francisco bureaucrats review a bid from a
contractor who is black, Latino or a woman, they must pretend
the bid is 10 percent below real cost. Meanwhile, proposals from
white males are reviewed at full price.
Such systematic bias has been illegal at least since 1996, when
California voters added Proposition 209 to the state Constitution.
209 prohibits race and sex preferences in public schooling,
contracting and hiring.
But San Francisco
City Attorney Dennis
Herrera shows no embarrassment about defending
the city’s policy of pigeonholing people
by pigment. In fact, he has boasted about his “winning
streak” against Prop. 209 lawsuits. Court challenges to
the racially skewed contract system have been moving like molasses
thanks to his procedural stalling tactics.
Earlier this month,
however, defenders of equal rights finally got a chance to
claim bragging rights. Herrera lost a high-profile
employment-discrimination case — perhaps the first-ever
courtroom defeat for San Francisco’s policies of racial
spoils. A San Mateo County jury awarded $30,600 in damages to
Allen Harman, who was denied a management job at San Francisco
International Airport because he’s white. A safety employee
since 1991, Harman applied for a promotion in 1997. But the city
was using a racial calculus for hires and advancements; it was
arbitrarily trying to make the airport’s ethnic mix mirror
the general population’s. Harman’s color didn’t
fit the formula.
When Harman wound up at the top of the promotion list, and others
in the pool also turned out to be white, the order came down
to reopen the application process, with a mandate for more diversity.
The job eventually went to a minority candidate.
Although the city
dropped its explicit quota policy after Harman filed his lawsuit,
evidence developed in his case indicated that
this was a change on paper only, and skin color continued to
guide personnel decisions informally. It was also found that,
in the past, applications for some jobs had been placed in color-coded
envelopes — with yellow stickers for Asian applicants,
black or brown stickers for African-Americans, and white stickers
Harman’s courtroom triumph over the city’s color-obsessed
quota commissars may be unprecedented — but partly for
this reason, officials refuse to acknowledge that anything has
changed. City Attorney Herrera defiantly vowed an appeal.
One person San Francisco
need not fear is state Attorney General Bill
Lockyer. He has
not lifted a finger to enforce Prop. 209,
even though dozens of cities, counties and local agencies have
yet to comply fully with its requirements. San Francisco is far
from the only Prop. 209 scofflaw; it’s just the most brazen.
A few of the other offenders:
Los Angeles County.
It publishes a “goals and timetables” schedule
for hiring nonwhites and females 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 hiring is monitored for racial and
The Los Angeles Unified
School District. Here, it’s teachers’ color
that officials obsess about. When Jim Friery, a Van Nuys phys-ed
instructor, asked to transfer to another high school, he was
told it had enough white teachers already. His lawsuit is now
in federal court.
The Sacramento Municipal Utilities District. In handing out
contracts, this agency gives bonus points to bidders of the desired
color or sex. The discrimination comes with a twist: In prime
contracts, preferences go to blacks and Latinos but not Asians;
in subcontracts, Asians and blacks, but not Latinos, are favored.
The Berkeley Unified
School District. Its “controlled
choice” system tells kids which school they can attend
based in part on their race.
policy that Lockyer hasn’t questioned
is the University of California’s new approach to sifting
applications from high-school seniors. This “comprehensive
review” of applicants to individual UC campuses downplays
academics and puts new stress on 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
the aim is to bring back quotas — in camouflage.
Prop. 209 enshrined
a core civil rights principle: Racial bloodlines shouldn’t be used to classify people; your character is
what should count. This tenet is more relevant than ever today,
when the census says there’s no majority racial or ethnic
group in California — we’re all “minorities.”
The banner of fairness
that Lockyer has dropped must continue to be carried by what
state law calls “private attorneys
general,” such as the Pacific
Legal Foundation, which represented
Harman in the San Francisco case.
Appropriately, Harman’s win came on the eve of Independence
Day, when we celebrate the Declaration’s proposition that
all people are created equal. The battle to defend that principle
in California — to see the rule of law enforced in San
Francisco and compliance by recalcitrant bureaucrats elsewhere
- promises to be long and difficult. Struggles for justice often
are, but that doesn’t make them less essential, or less
This piece first appeared in the Orange County Register.
2004 Pacific Legal Foundation