CORAL CONSTRUCTION, INC., v. CITY AND COUNTY OF SAN FRANCISCO
Filed 4/18/07
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
CORAL CONSTRUCTION, INC., Plaintiff and Respondent, v. CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Appellants. | A107803 (San Francisco County Super. Ct. No. 319549) |
SCHRAM CONSTRUCTION, INC., Plaintiff and Respondent, v. CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Appellants. | (San Francisco County Super. Ct. No. 421249) |
Since 1984, the City and County of San Francisco has operated under various iterations of its Minority/Women/Local Business Utilization Ordinance (Ordinance). The Ordinance, in its several forms, has called for race- and gender-conscious remedies to ameliorate the effects of past discrimination in the awarding of City contracts.
More than 10 years ago the California electorate adopted Proposition 209, the California Civil Rights Initiative, thereby adding article I, section 31 ( 31) to our Constitution. This amendment prohibits all state and local governments and entities from discriminating against, or granting preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting. ( 31, subd. (a).) This appeal centers on the prohibition against distribution of race- and gender-based preferences in public contracting.
Subsequent to the adoption of section 31, the City enacted another version of the Ordinance. Two construction companies[1]challenged the Ordinance on grounds that certain provisions patently violated section 31.
On cross-motions for summary judgment, the trial court struck down the Ordinance as violative of section 31 and rejected the Citys arguments that (1) section 31 is preempted by the International Convention on the Elimination of All Forms of Racial Discrimination (Race Convention), a human rights treaty ratified by Congress in 1994; (2) section 31 offends the Hunter/Seattle[2]political restructuring arm of equal protection jurisprudence; and (3) pervasive past discrimination in public contracting converts the Ordinance into a remedial measure required by the federal equal protection clause such that the superior mandate of that clause preempts section 31. The City has appealed.
We conclude that the trial court correctly determined that section 31 (1) is not preempted by the Race Convention and (2) does not offend the Hunter/Seattle restructuring arm of equal protection jurisprudence. We further hold that the Ordinance is not required to maintain the Citys eligibility for federal funds. However, the trial court failed to adjudicate the matter of whether the Ordinance is mandated by the federal Constitution as a narrowly tailored remedial program to remedy ongoing, pervasive discrimination in public contracting. Accordingly, we will remand the matter to the trial court for the limited purpose of adjudicating this issue. In all other respects, the judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. History of the Ordinance
1. 1984 and 1989 Ordinances
In Associated Gen. Contractorsof Cal. v. Coalition (9th Cir. 1991) 950 F.2d 1401 (AGCC II), involving a challenge to the 1989 Ordinance, the reviewing court summarized the early history of the Ordinance, as follows:
In April 1984, the San Francisco Board of Supervisors (the Board) passed the Minority/Women/Local Business Utilization Ordinance . . . , which required the City to set aside designated percentages of its contracting dollars to minority-owned business enterprises [MBEs] and women-owned business enterprises [WBEs]. In addition, the 1984 Ordinance required that MBEs, WBEs and locall[y]-owned business enterprises (LBEs) receive a five percent bidding preference to be taken into account when the City calculated the low bid on city contracts.
AGCC, an organization of contractors engaged in the building and construction industry, . . . challenged the implementation of the 1984 Ordinance in court. In reviewing the ordinance, this circuit upheld the provisions favoring WBEs and LBEs against AGCCs constitutional challenge but invalidated the provisions favoring MBEs. AGCC v. City and County of San Francisco, 813 F.2d 922, 928-44 (9th Cir. 1987), petition dismissed, 493 U.S. 928, [citations] (1989) (AGCC I). In addition, we ruled that all bidding preferences, insofar as they applied to contracts over $50,000, violated [the] San Francisco City Charter . . . .
Shortly after our decision in AGCC I, the Supreme Court considered a similar minority set-aside plan in City of Richmond v. J.A. Croson Co., 488 U.S. 469 [Croson] [citations] (1989). In that decision, a deeply divided Supreme Court struck down the racial set-aside plan adopted by the city of Richmond, Virginia. At the same time, however, the Court confirmed that municipalities could employ race-conscious remedies to redress discrimination in certain circumstances. [Citations.] Prior to Croson, the City had been investigating continued discrimination in city contracting. In that capacity, it had received, among other information, testimony from 42 witnesses, and written submittals from 127 minority, women, local, and other business representatives. Subsequently, in an attempt to determine whether Crosons criteria for permitting race-conscious ordinances were met with respect to San Francisco, the City held an additional ten public hearings, commissioned two statistical studies, and sought written submissions from the public. Out of this process emerged the 1989 Ordinance . . . . (AGCC II, supra, 950 F.2d at pp. 1403-1404, fn. omitted.)
The summary continued: Rather than providing the set-asides mandated by the 1984 Ordinance, the 1989 Ordinance gives bid preferences to prime contractors who are members of groups found disadvantaged by previous bidding practices. (AGCC II, supra, 950 F.2d at p. 1404.) AGCC contested the 1989 Ordinance as well, arguing that it violated the federal equal protection clause and failed to satisfy the Croson standards for race-conscious remedies. The Ninth Circuit concluded that the City was likely to demonstrate a strong basis in evidence supporting its decision to adopt a race-conscious plan (id. at p. 1416, fn. omitted) and that the Ordinance was narrowly tailored to redress the consequences of discrimination (id. at pp. 1416-1418).
2. 1998 Ordinance
The 1989 Ordinance expired on October 31, 1998. In the interim period the Citys Board of Supervisors (Board) and the Citys Human Rights Commission (HRC) conducted further investigations to determine whether discrimination in contracting had been eradicated or mitigated. This effort included 14 public hearings (eight of which occurred in 1997 and 1998), live testimony from 254 witnesses, videotaped testimony from numerous other witnesses, statistical disparity studies and other documentary evidence pertinent to alleged discrimination and bidding irregularities.
Minority contractors observed that, as compared with nonminority contractors, City inspectors imposed more onerous requirements on them, scrutinized their work more closely and treated them more harshly if they made mistakes. For example, while inspectors would waive compliance with certain requirements for majority-owned firms, they forced minority contractors to redo the same work on the same programs, at substantial cost. As well, one minority contractor spoke of being harassed and subjected to racist and derogatory remarks from City inspectors. Another complained of being subjected to more rigorous background-vetting despite his extensive qualifications and experience.
Upon review of all the materials, the Board made findings of continued discrimination in public contracting and subcontracting against minority- and women-owned businesses, concluding that a new MBE/WBE ordinance was needed and that race-neutral measures employed by the City had not been helpful in preventing such discrimination. The Board adopted the 1998 version of the Ordinance, which was in effect at the time the instant complaints were filed.
The 1998 Ordinance provided for a bid discount program which required City departments to give specified discounts to contract bids submitted by certified WBEs or MBEs. (S.F. Admin. Code, 12D.A.9(A)(2), 12D.A.5, 12D.A.6(b).) Additionally, it contained a subcontracting program requiring bidders for certain prime contracts to document their good-faith efforts to use MBE and WBE subcontractors. (Id., 12D.A.17.) As summarized by the HRC director, the subcontracting program works this way: [B]idders for certain types of prime City contracts must demonstrate their good faith efforts to provide certified MBEs and WBEs an equal opportunity to compete for subcontracts. A bidder may comply with the Subcontracting Program by documenting its good faith efforts to inform MBEs and WBEs of subcontracting opportunities. Bidders who show that they plan to use MBE and WBE subcontractors at a level one would expect absent discrimination need not document their good faith efforts. [3]
Good-faith efforts which a prime contractor must demonstrate to comply with the MBE/WBE participation goals include: identifying specific items on the project to be performed by MBEs/WBEs to provide participation opportunities by those entities; advertising for MBEs or WBEs in one or more newspapers, trade publications, minority-oriented publications or other media, not less than 10 calendar days before the bid submittal date; providing written notice of the contractors interest in bidding on the contract to the number of MBEs or WBEs required to be notified by the project specifications; following up initial solicitations of interest by contacting potential MBE/WBE subcontractors to ascertain their interest; providing interested MBEs/WBEs with information about plans, specifications and requirements of the project; requesting assistance from minority and women community organizations, professional groups or business assistance offices to identify available MBEs and WBEs; negotiating in good faith with interested MBEs and WBEs and not rejecting bids unjustifiably; and advising and making efforts to assist interested MBEs/WBEs in obtaining bonds, credit or insurance. (S.F. Admin. Code, 12D.A.5.)
3. The 2003 Ordinance
The 1998 Ordinance expired in 2003. Further investigation and public hearings followed, and in May 2003 the Board reauthorized the 1998 Ordinance, without substantial change.
The investigation included a 2003 disparity analysis conducted by HRC to assess the utilization of MBEs and WBEs in City contracting. This study revealed continued statistically significant underutilization of racial, ethnic, and nonminority women-owned businesses as prime contractors on various types of City projects. Additionally, there was statistically relevant underutilization of such businesses at the subcontracting level. HRC also released a memorandum in 2003 relaying examples of departmental and subcontractor resistance to the commissions attempts to enforce the ordinance, as well as examples of noncompliance, including an example of a City staffer who manipulated a member of the selection panel to ensure that a certified firm received a low score and therefore would not be considered. Further, City staffers (1) would blame MBE/WBE prime contractors for project delays, knowing they were caused by non-MBE/WBE subcontractors; (2) impose unreasonably strict technical requirements (e.g., unnecessarily high number of years experience), resulting in automatic exclusion of many MBE/WBE companies; and (3) routinely extend contracts rather than putting them out for a new bid, thus limiting opportunities for MBE/WBE firms.
The Board and the HRC conducted hearings in 2002-2003 at which 134 individuals testified. The general findings supporting the 2003 Ordinance describe the testimony as recounting the discrimination minorities and women continue to face in City contracting and in obtaining contracts in the Bay Area that are not subject to affirmative action programs. For example, minority contractors spoke of experiencing unfair scoring practices and indicated that a City official changed subcontracting rules and the scope of work to ensure exclusion of MBEs/WBEs from some contracting opportunities.
The record reviewed by the Board also exposed the ways in which prime contractors tried to circumvent compliance with the MBE/WBE ordinance. For example, MBE/WBE firms listed as subcontractors often receive little or none of the promised work; instead, work was performed by the prime contractor or another noncertified subcontractor. In one instance, once the subcontractor reached the allotted percentage as a subcontractor, her firm was immediately dropped from the job. Majority contractors have also refused to tender prompt payment for services of MBEs and WBEs.
Extensive legislative findings accompanied enactment of the 2003 ordinance, including that (1) the disproportionately small percentage of City contracts and subcontracts going to women and minority-owned businesses was due to discrimination by the City and discrimination in the private sector; (2) the City was actively discriminating against women and minority groups in its contracting, and was passively participating in private sector discrimination; (3) the Citys contracting practices were in violation of federal law and therefore the Ordinance was required to bring the City into compliance with federal civil rights law; and (4) race- and gender-conscious remedial programs continued to be required to remedy discrimination against minority- and women-owned businesses in City contracting and subcontracting programs. The Board adopted the ordinance to remedy the specifically identified City contracting practices and conditions in the Community and industries that cause the exclusion or reduction of contracting opportunities for minority- and women-owned businesses in City prime and subcontracting programs.
B. Procedural History
Coral challenged the Ordinance in 2001, seeking a writ of mandate compelling the City to implement race- and sex-neutral contracting policies and practices and directing it to cease implementing the 1998 Ordinance.[4] Coral also sought declaratory relief on the assertion that the bid discount and subcontracting programs facially violated section 31. The City successfully attacked Corals standing in the trial court, but we reversed. (Coral I, supra, 116 Cal.App.4th at pp. 10, 28.)
Meanwhile, in 2003 Schram filed a complaint for declaratory and injunctive relief, similarly alleging that the Ordinance facially violated section 31. Schram and the City filed cross-motions for summary judgment. The City presented volumes of evidence consisting primarily of the evidence the Board cited and relied upon in the preamble and findings to the 1998 and 2003 Ordinances.
While the summary judgment motions were pending, Coral I was remanded to the trial court and the two cases were consolidated by stipulation. All agreed that Coral would join Schrams motion and opposition, with no further briefing or record submissions.
Thereafter the trial court granted respondents motion, denied the Citys motion and entered judgment and permanent prohibitory injunction. This appeal followed.
II. DISCUSSION
A. Standard of Review
The trial court must grantsummary judgment if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc., 437c, subd. (c).) Both the denial and grant of a motion for summary judgment are subject to de novo review. (Edward Fineman Co. v. Superior Court (1998) 66 Cal.App.4th 1110, 1116.) As well, issues of statutory and constitutional interpretation raise pure questions of law, subject to independent appellate review. [Citation.] (Slocum v. State Bd. of Equalization (2005) 134 Cal.App.4th 969, 974.)
B. The Federal Funding Exception to Section 31 Does Not Save the Ordinance
There is a federal funding exception to section 31 that exempts certain enactments and actions from its reach. It states: Nothing in this section shall be interpreted as prohibiting action which must be taken to establish or maintain eligibility for any federal program, where ineligibility would result in a loss of federal funds to the State. ( 31, subd. (e).) The City presented undisputed evidence that several departments and agenciesincluding the Port of San Francisco and the San Francisco International Airport, Public Utilities Commission, Municipal Railway and Department of Public Worksreceive funding from various federal agencies and that the granting agencies require its recipients to comply with title VI of the Civil Rights Act of 1964 (Civil Rights Act)[5]and the implementing regulations. The City is adamant that without the race- and gender-conscious measures set forth in the Ordinance, it will lose federal funding.
In detail, the Citys argument is this: Receipt of all these federal funds is conditioned on compliance with 49 Code of Federal Regulations part 21 (2005). Pursuant to 49 Code of Federal Regulations part 21.5(c)(1) and (3), where the primary objective of the federal grant is to provide employment, or where the recipient has a record of discrimination, the recipient must meet the requirements of Executive Order No. 11246.[6] Because the City has a record of direct and passive discrimination, the Executive Order and regulations require it to develop and maintain an affirmative action program that includes race- and gender-conscious project participation goals, training opportunities and recruitment and outreach. (Citing 41 C.F.R. 60-1.40, 60-4.2 & 60-4.3(7)(a)-(p) (2004).) If the City fails to establish and maintain a program with these race- and gender-conscious measures, it could, among other things, lose FHWA [Federal Highway Administration] funding and the opportunity to obtain such funding in the future.
Respondents clarify that 49 Code of Federal Regulations part 21 sets forth regulations pertaining to the employment practices of the recipient (49 C.F.R. 21.5(c)(1), (3)) or the recipients contractor (41 C.F.R. 60-4).[7] These provisions are irrelevant because they do not govern contracting practices.
The City counters that its reference to employment regulations is a valid means to ascertain the contours of [its] contracting obligations. The question here is not whether and how courts look to terms in the employment context to define standards in public contracting, but whether the Ordinance is necessary to maintain or establish eligibility for federal funds. ( 31, subd. (e).)
The City also calls our attention to other regulations which it contends mandate implementation of race-conscious remedies. These include Department of Transportation regulations which provide: This part does not prohibit the consideration of race, color, or national origin if the purpose and effect are to remove or overcome the consequences of practices or impediments which have restricted the availability of, or participation in, the program or activity receiving Federal financial assistance, on the grounds of race, color, or national origin. Where prior discriminatory practice or usage tends, on the grounds of race, color, or national origin to exclude individuals from participation in, to deny them the benefits of, or to subject them to discrimination under any program . . . , the applicant or recipient must take affirmativeaction to remove or overcome the effects of the prior discriminatory practice or usage. Even in the absence of prior discriminatory practice or usage, a recipient in administering a program or activity to which this part applies, is expected to take affirmative action to assure that no person is excluded from participation in or denied the benefits of the program or activity on the grounds of race, color, or national origin. (49 C.F.R. 21.5(b)(7) (2005).)
Likewise, the City refers to 40 Code of Federal Regulations part 7.35(a)(7), which contains a similar directive to recipients of assistance from the Environmental Protection Agency (EPA) to take affirmative action to provide remedies to those who have been injured by the [past] discrimination.
The City maintains that these take affirmative action directives require recipients to remedy past discrimination with race-conscious programs. We disagree.
The first sentence of the Department of Transportation regulation quoted above permitsbut does not requirethe recipient of federal funds to use race-based measures to remedy past discrimination. The second sentence imposes a duty to take affirmative action to remove the effects of such discrimination, but again it does not require that those measures be race-based. And finally, the last sentence embodies an expectation that recipients will pursue affirmative action to avoid discrimination by ensuring that minorities are not excluded from participating in applicable programs. Likewise, this provision is permissive in terms of the nature of the steps take, i.e. be they race-neutral or race-conscious. (C&C Construction, Inc. v. Sacramento Municipal Utility Dist. (2004) 122 Cal.App.4th 284, 308-309 (C&C Construction).) We further point out that the Civil Rights Act contains an express provision generally limiting the preemptive effect of the act, as follows: Nothing contained in any title of this Act shall be construed as indicating an intent on the part of Congress to occupy the field in which any such title operates to the exclusion of State laws on the same subject matter, nor shall any provision of this Act be construed as invalidating any provision of State law unless such provision is inconsistent with any of the purposes of this Act, or any provision thereof. (42 U.S.C. 2000h-4.) Section 31, with its categorical prohibition of discrimination in the operation of public employment, education and contracting, is consistent with the intent of title VI of the Civil Rights Act to prevent recipients from discriminating on the basis of race, color or national origin in funded activities and programs.
Turning to the EPA regulation directing affirmative action to remedy the effects of past discrimination, we note that the language calls for specific targeting of remedies to those who have been injured by past discrimination. The Ordinance is not designed to pinpoint remedies to those suffering prior injuries and thus whether it remains in effect or not would not impact this directive. Moreover, the dictate itself prohibits a recipient from using criteria or methods of administering its program or activity which have the effect of subjecting individuals to discrimination because of their race . . . or sex . . . . (40 C.F.R. 7.35(b).)
It is the Citys burden to bring forth substantial evidence that it will lose federal funding if it does not use race-based measures and must narrowly tailor those measures to minimize race-based discrimination. (C&CConstruction, supra, 122 Cal.App.4th at p. 298.) And, if a particular federal regulation expressly requires a state agency to use race-based measures to remedy past discrimination, the state agency must have substantial evidence of the type of past discrimination that triggers the federal regulations requirement for current race-based measures. What facts, if present, require race-based remedial measuresthe factual predicate for race-based measuresmust be defined in the federal law or regulation, not by the state agency. (Id. at p. 299.)
Here the record is devoid of evidence sufficient to rouse the federal funding exception to section 31. Where is the factual predicate showing the specific type of past discrimination that triggers a particular regulations requirement for race-based remedial measures like the bid discount and subcontracting programs? The Citys generalized arguments and statements are inadequate.
C. Ratification of the Race Convention Does Not Prompt Federal Preemption of Section 31
The United States Senate ratified the Race Convention in 1994 with the declaration and reservation that the treaty would be implemented by the federal government to the extent of its jurisdiction over the matter and otherwise by the state and local governments. (Race Convention, Declaration and Reservations
The supremacy clause of the United States Constitution announces the doctrine of federal preemption, including that all treaties made . . . under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding. (U.S. Const., art. VI, cl. 2.) The question here is whether, as the City suggests, section 31 conflicts with, and therefore must yield to, the Race Convention. To answer this question we must construe the treatys key terms and determine whether the Race Convention requires the use of race-conscious remedial measures, such as the Citys bid preference and subcontracting programs.
The Race Convention defines racial discrimination as any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. (Race Convention, pt. I, art. 1, 1; Gov. Code, 8315, subd. (b).) However, certain measures are not encompassed within this definition: Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved. (Race Convention, pt. I, art. 1, 4; Gov. Code, 8315, subd. (b).) Special measures shall be undertaken as follows: States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. (Race Convention, pt. I, art. 2, 2.)
Government Code section 8315 attempts to bring the definition of discrimination in section 31 in line with the definition of discrimination in the treaty. When enacting this provision, the Legislature found and declared that section 31 does not define racial discrimination, that the absence of a definition has led to confusion and in order to clarify that confusion, racial discrimination as used in section 31 shall have the same meaning as contained in paragraphs 1 and 4 of the Race Convention, quoted above. (Stats. 2003, ch. 211, 1; Gov. Code, 8315, subd. (a).)
First, it is apparent that in attempting to synchronize these definitions, the Legislature overlooked Hi-Voltage Wire Works, Inc. v. City of San Jose (2000) 24 Cal.4th 537, 559-560 (Hi-Voltage), wherein our Supreme Court rejected any specialized meaning of discriminate in favor of the dictionary meaning. As recently pointed out in C&CConstruction, the Supreme Court is the final authority on interpretation of our state Constitution and therefore its definitionnot the Legislaturescontrols. (C&C Construction, supra, 122 Cal.App.4th at p. 302, citing Sands v. Morongo Unified School Dist. (1991) 53 Cal.3d 863, 902-903.) In effect, the enactment of Government Code section 8315 amounted to a legislative attempt to amend the state Constitution without following the proper procedures for amendment. (C&C Construction, supra, at p. 302.)
The City contends that the C&C Construction is wrong, reasoning that the Legislatures power to enact Section 8315 does not arise under state law. Rather, in this instance, the California Legislature was acting pursuant to an express federal duty placed upon it by the United States Senate to execute a United States treaty within its jurisdiction. Because the Legislatures power to act derived from federal rather that state law, it was superior to Proposition 209 and validly exercised without the need for a constitutional amendment. This argument blatantly ignores key government concepts like the separation of powers and the unique role of our judicial system. The Legislature was not operating on a clean slate because our Supreme Court had already interpreted section 31. The overturning of that constitutional interpretation must also take place within the court system, or by way of amendment to the Constitution. The Legislatures duty to respond to a federal treaty does not come fortified with federal superpowers enabling it to bypass the judicial and amendatory processes.
Alternatively, the City maintains that whether or not Government Code section 8315 is valid, federal preemption principles require us to favor the Race Conventions definition of discrimination over that of section 31, and thus evaluate the Ordinance under that treaty. This would be so if the two laws were in fatal conflict, but they are not.
The issue is not the basic definitions of discrimination in the treaty and the California Constitutionthey are comparable. Rather, the issue is whether the Race Conventions exclusion of special measures from its definition of discrimination, and its directive to signatory countries in part I, article 2, paragraph 2 to take such measures when warranted, create a conflict. In its report to the United Nations, the United States took note of the two special measures provisions and then construed them as follows: Together, article 1 (4) [special measures exclusion] and article 2 (2) permit, but do not require, States parties to adopt race-based affirmative action programmes without violating the Convention. Deciding when such measures are in fact warranted is left to the discretion of each State party. (Reps. Submitted by State Parties Under Article 9 of the Convention, Com. on the Elimination of Racial Discrimination (CERD), CERD/C/351/Add.1, Oct. 10, 2000, Addendum, U.S.A., 249, p. 60 (CERD Report).)[8] The CERD Report also noted that Proposition 209 . . . prohibits the state from considering race or gender in state employment, public contracting or education programmes and indicated that despite Proposition 209, the federal government has argued consistently that the Constitution and title VII of the Civil Rights Act allow for the narrowly tailored consideration of race in elementary and secondary school and university admissions. (CERD Rep., 268, 269, p. 64.) Significantly, the United States did not argue that the Constitution compelled race-conscious remedial measures.
Story Continued as Part II
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[1]The companies are Coral Construction, Inc. (Coral) and Schram Construction, Inc. (Schram) (collectively, respondents).
Appellants herein are the City and County of San Francisco; John L. Martin, in his official capacity as Director of the San Francisco International Airport; Henry E. Berman, Larry Mazzola, Michael S. Strunsky, Linda S. Crayton and Caryl Ito, in their official capacities as members of the Airport Commission of the City and County of San Francisco; and the San Francisco Public Utilities Commission (collectively, City). Coalition for Economic Equity has filed an amicus curiae brief on behalf of appellants in this appeal.
[2]Based on Hunter v. Erickson (1969) 393 U.S. 385 (Hunter) and Washington v. SeattleSchool Dist. No. 1 (1982) 458 U.S. 457 (Seattle).
[3]Coral Construction, Inc. v. City and County of San Francisco (2004) 116 Cal.App.4th 6, 10, footnote omitted (Coral I). The level of MBE/WBE subcontract work one would anticipate absent discrimination is set by the HRC director and staff. It is based on the subcontracting opportunities presented by the particular contract and the availability of certified MBEs and WBEs qualified to perform the type of work involved in the contract. (Ibid., fn. 2.)
[4]Although the 1998 Ordinance has expired, Corals challenge is not moot because the 2003 Ordinance reenacted the 1998 law without significant change, based on new findings.
[5]Title VI of the Civil Rights Act states in part: No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. (42 U.S.C. 2000d.)
[6]30 Federal Register 12319 (Sept. 24, 1965).
[7]As an example, 49 Code of Federal Regulations part 21.5(c)(1) (2005) is entitled Employment practices and provides in part: (1) Where a primary objective of the Federal financial assistance to a program . . . is to provideemployment,a recipient . . . shall not . . . subject a person to discrimination on the ground of race, color, or national origin in its employment practices . . . [and] shall take affirmative action to insure that applicants are employed, and employeesare treated duringemployment, without regard to their race, color, or national origin. (Italics added.)
Similarly, subdivision (c)(3) provides that where the primary aim of federal assistance is not to provide employment, but nonetheless discrimination on the grounds of race, color, or national origin in the employment practices of the recipient . . . tends, on the grounds of race, color, or national origin, to exclude individuals from participation in, to deny them the benefits of, or to subject them to discrimination under any program to which this regulation applies, the provisions of paragraph (c)(1) of this section shall apply to the employment practices of the recipient or other persons subject to the regulation, to the extent necessary to assure equality of opportunity to, and nondiscriminatory treatment of, beneficiaries. (49 C.F.R. 21.5(c)(3), italics added.)
41 Code of Federal Regulations part 60-4 (2005) sets forth affirmative action requirements for construction contractors and applies to all of a construction contractors or subcontractors construction employees . . . . (Id., 60-4.1) Part 60-4.2(d) concerns construction contractors and refers to male and female participation goals as a percentage for the Contractors aggregateworkforce in each trade . . . . (Italics added.)
[8]The CERD Report was prepared by the United States Department of State. (CERD Rep., 2, p. 3.)
