Contributors
Harold Johnson- Columnist

Harold 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 in 1978.

Harold Johnson represents one of the Sea Scouts challenging Berkeley's anti-Scout policy 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.

Flouting Prop. 209
So What If It’s in the Constitution-San Francisco Officials Won’t Enforce It
[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. Prop. 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 for Caucasians.

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 sexual correctness.

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.

Another suspicious 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 rewarding. CRO

This piece first appeared in the Orange County Register.

copyright 2004 Pacific Legal Foundation

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