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

Story Continued from Part I

In response, the CERD voiced concern with the United States position that the provisions of the [Race] Convention permit, but do not require States parties to adopt affirmative action measures to ensure the adequate development and protection of certain racial, ethnic or national groups. The Committee emphasizes that the adoption of special measures by States parties when the circumstances so warrant, such as in the case of persistent disparities, is an obligation stemming from article 2, paragraph 2, of the [Race] Convention. (Rep. of CERD, Gen. Assem. Off. Records, 56th Sess., Supp. No. 18 (A/56/18), 2001,  399, p. 71.)

CERD views the Race Convention as requiring adoption of race-based remedies in the face of persistent inequities while the State Department interprets the companion provisions as calling for a permissive approach. Respect is ordinarily due the reasonable views of the Executive Branch concerning the meaning of an international treaty. [Citation.] (Although not conclusive, the meaning attributed to treaty provisions by the Government agencies charged with their negotiation and enforcement is entitled to great weight.) (El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng (1999) 525 U.S. 155, 168.) The State Departments interpretation is reasonable and accordingly we accord it great deference. Nothing in article 2, paragraph 2 requires that a particular type of special and concrete measure[] be utilized to remedy persistent discrimination. Indeed the plain meaning of the two provisions, read together, is that a state party is required to undertake some sort of special measures when circumstances so warrant in order to ensure the adequate development and protection of certain racial groups (Race Convention, pt. I, art. 2,  2); and to the extent such special measures would come within the normal definition of discrimination, those measures would not violate the Race Convention (id., pt. I, art. 1,  4). In other words the Race Convention does not mandate race-conscious special measures. Since section 31 can be reconciled with the Race Convention, it is not preempted by it.

D. The Trial Court Properly Rejected the Citys Assault on Section 31 under the Seattle-Hunter Political Restructuring Doctrine

The City in its own motion for summary judgment took the position that section 31 cannot be applied constitutionally to prevent it from enacting remedial legislation to assist minorities and women.^[1] Developing this argument, the City has invoked equal protection principles announced in Seattle and Hunter, in particular the idea that the Fourteenth Amendment extends to a political structure that treats all individuals as equals, [citation], yet more subtly distorts governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation. (Seattle, supra, 458 U.S. at p. 467; see also Hunter, supra, 393 U.S. at pp. 390-391.) The trial court rebuffed this approach and denied the motion. We likewise conclude that section 31 does not implicate concerns under the political restructuring branch of federal equal protection jurisprudence.

1. Overview of Key Principles and Cases

In a nutshell, the Hunter/Seattle doctrine invokes the constitutional guarantee of equal protection to invalidate certain facially neutral enactments that explicitly alter the established political process with respect to a racial issue, thereby making it more onerous for racial minorities to achieve favorable legislation with respect to that issue. In other words, the equal protection clause will preclude laws that change the political landscape for racial reasons, or allocate governmental power to achieve an illicit, discriminatory purpose. (See Crawford v. Los Angeles Boardof Education (1982) 458 U.S. 527, 541 (Crawford).) As we explain, Hunter and Seattle expound the core concepts of the doctrine; Crawford exposes its reach.

The factual setting in Hunter harks back to 1964 when the Akron City Council enacted a fair housing ordinance to assure equal housing opportunities to all persons, regardless of race, color or creed. Nellie Hunter attempted to invoke the ordinance after being denied the opportunity to be shown houses on the for-sale list because she was African-American. Ms. Hunters complaint was met with the response that the ordinance had been amended and no longer afforded her recourse. Indeed the electorate of Akron had amended the city charter to require that any fair housing ordinance enacted by the city councilincluding the ordinance invoked by Ms. Hunterbe subjected to a referendum prior to taking effect. (Hunter, supra, 393 U.S. at p. 390.) All other ordinances regulating real estate transactions became effective 30 days after enactment by the city council.

The Supreme Court struck down the city charter amendment on equal protection grounds. Although the amendment was facially neutral, the court was disturbed by the reality that the laws impact falls on the minority. (Hunter, supra, 393 U.S. at p. 391.) The amendment placed a special burden on racial minorities within the governmental process. (Ibid.) Holding that the amendment constituted a real, substantial, and invidious denial of the equal protection of the laws (id. at p. 393), the court reasoned that the government may no more disadvantage any particular group by making it more difficult to enact legislation in its behalf than it may dilute any persons vote or give any group a smaller representation than another of comparable size. (Ibid.)

Finding support in Hunter, the court in Seattle invalidated a state initiative which forbade mandatory busing of public school pupils for purposes of racial integration. The court held that despite [the initiatives] facial neutrality there is little doubt that the initiative was effectively drawn for racial purposes. (Seattle, supra, 458 U.S. at p. 471.) In other words, the initiative was enacted because it would adversely effect busing for integration. (Ibid.) The court further concluded that the practical effect of Initiative 350 is to work a reallocation of power of the kind condemned in Hunter. The initiative removes the authority to address a racial problemand only a racial problemfrom the existing decisionmaking body, in such a way as to burden minority interests. . . . [T]he initiative expressly requires those championing school integration to surmount a considerably higher hurdle than persons seeking comparable legislative action. (Id. at p. 474.)

Thus it is apparent that a challenger relying on the Hunter and Seattle decisions would have to demonstrate that the particular law (1) employs a racial classification or has the purpose of adversely impacting racial minorities, and (2) alters the political landscape on a racial matter in a manner that places a special burden on racial minorities.

The reach of this doctrine was clarified in Crawford with the upholding of a California constitutional amendment (Proposition I) limiting state court-ordered school busing for desegregation purposes to those instances in which a federal court would order such a remedy to correct a violation of the federal equal protection clause. The court rejected the petitioners contention that Proposition I embodied a racial classification and imposed a race-specific burden on racial minorities. It neither says nor implies that persons are to be treated differently on account of their race. (Crawford, supra, 458 U.S. at p. 537.) Further, the court explained that there was a distinction between state action that discriminates on the basis of race and state action that addresses, in neutral fashion, race-related matters. This distinction is implicit in the Courts repeated statement that the Equal Protection Clause is not violated by the mere repeal of race-related legislation or policies that were not required by the Federal Constitution in the first place. . . . In sum, the simple repeal or modification of desegregation or antidiscrimination laws, without more, never has been viewed as embodying a presumptively invalid racial classification. (Id. at pp. 538-539.) However, where the purpose for repealing legislation is to disadvantage a racial minority, the repeal is unconstitutional. (Id. at p. 539, fn. 21.)

Countering the argument that Proposition I fundamentally altered the judicial system by leaving those seeking relief from racial isolation in violation of state law with less than full judicial relief, the court clarified: Nor can it be said that Proposition I distorts the political process for racial reasons or that it allocates governmental or judicial power on the basis of a discriminatory principle. . . . [] . . . [H]aving gone beyond the requirements of the Federal Constitution, the State was free to return in part to the standard prevailing generally throughout the United States. (Crawford, supra, 458 U.S. at pp. 541-542, fn. omitted.) In other words, it worked no impermissible distortion of the political process for the people to align the states desegregation responsibilities and remedies with the standard set by the Fourteenth Amendment rather than the more protective standard repealed in part by Proposition I. The people can change their collective minds on state constitutional matters, so long as the result does not offend federal constitutional principles.

More recently, in Coalition for Economic Equity v. Wilson (9th Cir. 1997) 122 F.3d 692, certiorari denied (1997) 522 U.S. 963 (Wilson), the Ninth Circuit decided the precise issue presented here, namely whether section 31 reallocates political power in a racially discriminatory manner such that women and racial minorities are denied equal treatment because section 31 prohibits enactment and implementation of legislation such as the Ordinance. (Id. at pp. 706-708.) Vacating the preliminary injunction that enjoined the state from executing or enforcing the preferential treatment strand of section 31, the Wilson court concluded that the amendment did not work any constitutional injury. (Wilson, supra, at pp. 710-711.)^[2][3] During the course of the opinion the court reviewed the Hunter/Seattle doctrine, characterizing the enactments under attack in the two cases as having reallocated [political] authority in a racially discriminatory manner. (Id. at p. 706.) Drawing fuel from Crawford (id. at pp. 705-706), the court distinguished section 31, as follows: When, in contrast, a state prohibits all its instruments from discriminating against or granting preferential treatment to anyone on the basis of race or gender, it has promulgated a law that addresses in neutral-fashion race-related and gender-related matters. It does not isolate race or gender antidiscrimination laws from any specific area over which the state has delegated authority to a local entity. (Wilson, supra, at p. 707.)

2. Analysis

The heart of this matter is whether an enactment such as section 31, on its face neutral and nonoffending of federal equal protection principles, nonetheless runs afoul of those principles when examined under the Hunter/Seattle/Hunterpolitical restructuring doctrine. We conclude that it does not and that lodged under a Crawford analysis, section 31 survives this equal protection challenge.

a. No Impermissible Racial Classification or Racial Animus

A law may address a race-related matter, in neutral fashion, without embodying an invalid racial classification that discriminates on the basis of race. (Crawford, supra, 458 U.S. at p. 538.) Thus, the simple repeal or modification of desegregation or antidiscrimination laws, without more, never has been viewed as embodying a presumptively invalid racial classification. (Id. at p. 539.) Or, as framed a little differently by the dissent in Seattle: In the absence of a federal constitutional violation requiring race-specific remedies, a policy of strict racial neutrality by a State would violate no federal constitutional principle. (Seattle, supra, 458 U.S. at p. 491, dis. opn. of Powell, J.)

Section 31 terminates the ability of racial minorities and women to obtain preferences in the operation of public education, public employment and public contracting. Although stated as positive law, it also operates as the functional equivalent of an enactment that repeals preferential race- or gender-related legislation not required by the federal equal protection clause. Read in its entirety with the savings clause,^[4]section 31 is on footing similar to Proposition I, upheld in Crawford.^[5] Section 31 embraces general principles of nondiscrimination, including the prohibition of favoring persons on the basis of race or gender, and can only be viewed as standing for the proposition that racial and gender discrimination, affirmative or reverse, is unfair and wrong.

Unlike the laws struck down in Hunter and Seattle, there is a constitutional symmetry to section 31. Its dual prohibition against discrimination and preferential treatment, coupled with the savings clause, propel section 31 into neutral territory that brooks no impermissible racial classification. Justice Mosk, in his concurring opinion in High-Voltage, expands eloquently on the interplay between these two strands, as he addresses the impact and import of section 31. So doing, he makes it clear that the amendment brooks no impermissible racial classification. We quote at length: Stated negatively, section 31 prohibits governmental actors from improperly burdening or benefiting any individual or group in the operation of public employment, public education, or public contracting. The prohibition is not limited to barring such actors from improperly assigning burdens or benefits themselves. Rather, it extends to barring them from enabling, facilitating, encouraging, or requiring private parties to do so as well. For the operation of each of the indicated activities involves private parties as well as governmental actorsin other words, the operation of each entails the cooperation of both. One of section 31s purposes is to preclude any invidious barrier or privileged entrance to participation. [] Stated positively, section 31 commands governmental actors to treat all individuals and groups equally in the operation of public employment, public education, and public contracting. The command is not limited to compelling governmental actors to afford equal treatment themselves. Rather, it extends to compelling governmental actors to enable, facilitate, encourage, and require private parties to do so as well. Again, the operation of each of the indicated activities involves private parties as well as governmental actors, the operation of each entailing the cooperation of both. One of section 31s purposes is to remove all invidious barriers and privileged entrances to participation. [] Neither section 31s prohibition against the improper assigning of any burden or benefit in the operation of public employment, public education, or public contracting, nor its command of equal treatment therein, is limited solely to ends. Rather, both extend to means as well. Thus, one may not assign any burden or benefit improperly in an attempt to assign some other burden or benefit properly. Similarly, one may not afford treatment that in any respect is unequal in an attempt to afford treatment that in some other respect is equal. For section 31 at least, the end does not justify the means. Rather, means and end must each justify itself in light of section 31s prohibition and command. (Hi-Voltage, supra, 24 Cal.4th at pp. 570-571, conc. opn. of Mosk, J.)

b. No Impermissible Political Hurdle

It bears underscoring that the legislation passed in both Akron and Seattle placed explicit procedural hurdles in the way of racial minorities pursuit of antidiscrimination remedies: In Akron, a city charter amendment subjecting any fair housing ordinance enacted by the city council to a referendum; in Seattle, a statewide initiative which prohibited local school broads from mandating busing to achieve racial integration of the public schools. These enactments were not overt policy pronouncements. Rather, by sanctioning procedural changes that rigged the political process against racial minorities, the challenged laws impeded the efforts of racial minorities to secure protection against discrimination.

Although the Akron amendment was facially neutral, the legislation discriminated against racial minorities because it placed a special burden on them in their efforts to achieve antidiscrimination housing laws. (Hunter, supra, 393 U.S. at pp. 390-391.) Justice Harlan, concurring, cast the crux of the matter accurately when he said that Akron has not attempted to allocate governmental power on the basis of any general principle. Here, we have a provision that has the clear purpose of making it more difficult for certain racial and religious minorities to achieve legislation that is in their interest. (Id. at p. 395.)

The Seattle court was more forthright in discerning the purpose of the challenged initiative, saying it was beyond reasonable dispute that the people enacted the initiative because of its adverse effects upon busing for integration. (Seattle, supra, 458 U.S. at p. 471.) In other words, in both Hunter and Seattle there was an underlying, though not overtly stated, assumption that one had to but barely scratch the surface of the challenged law to expose its racially discriminatory purpose.^[6][7] That purpose was to restructure the political process so that racial minorities would be impeded in achieving, respectively, antidiscrimination in housing and busing for integration of public schools.

Here, section 31 is a substantive policy enactment barring race- and gender-based discrimination and preferences in public employment, contracting and education. It is utopian in nature, seeking to ensure that public benefits are allocated in a color-blind and gender-blind fashion. Section 31 is a sweeping change in policy operating at the highest level of government. As our Supreme Court explained, [t]he ballot argumentsfrom which we draw our historical perspectivemake clear that in approving Proposition 209, the voters intended section 31, like the Civil Rights Act as originally construed, to achieve equality of [public employment, education, and contracting] opportunities [citation] and to remove barriers [that] operate invidiously to discriminate on the basis of racial or other impermissible classification. [Citation.] (Hi-Voltage, supra, 24 Cal.4th at pp. 561-562.) In contrast, as the Seattle court articulated, the political majority may generally restructure the political process to place obstacles in the path of everyone seeking to secure the benefits of governmental action. But a different analysis is required when the State allocates governmental power nonneutrally, by explicitly using the racial nature of a decision to determine the decisionmaking process. (Seattle, supra, 458 U.S. at p. 470.)

The effect of section 31 is to make it more difficult for any citizen to secure preferences on the basis of race or gender. On the assumption that in the future it is racial and ethnic minorities and women who would want to push for such preferences, short of prevailing in court they will have to launch a statewide initiative to do so.^[8] (See Wilson, supra, 122 F.3d at p. 705, fn. omitted: We accept without questioning the district courts findings that Proposition 209 burdens members of insular minorities within the majority that enacted it who otherwise would seek to obtain race-based and gender-based preferential treatment from local entities.) Poor people, veterans, owners of small businesses, persons with disabilities and others will not have to go this extra lap, but of course racial and ethnic minorities and women would be among the pool of poor people, veterans, small business owners, persons with disabilities and the like who might push for such preferences. In other words, the sway of section 31 commands that racial and ethnic minorities and women take their place alongside others, based on nonracial and nongender classifications, in their quest for preferences in the distribution of government contracts and public educational and employment opportunities. As a policy matter reasonable minds can hold differing viewpoints on the impact and wisdom of such a policy. However, if the policy itself does not discriminate on the basis of race or gender, and is not a pretext for discrimination but rather aims at advancing a discrimination-free society, how can it be said to violate federal equal protection principles? Under Crawford, the people are free to retreat from a more expansive and protective civil rights policy and return to a standard that conforms to the federal Constitution. (Crawford, supra, 458 U.S. at pp. 541-542.) Under Crawford, it is clear that even when a neutral law has a disproportionately adverse effect on a racial minority, the Fourteenth Amendment is violated only if a discriminatory purpose can be shown. (Id. at pp. 537-538, fn. omitted.)

Moreover, as the Granholm court explained in its examination of the Hunter/Seattle line of cases, unlike Proposal 2 (and Proposition 209, the California prototype), the challenged enactments in those earlier cases made it more difficult for minorities to obtain protection from discrimination through the political process . . . . (Granholm, supra, 473 F.3d at p. 251.) In contrast, Proposal 2 (and Proposition 209) purport[] to make it more difficult for minorities to obtain racial preferences through the political process. These are fundamentally different concepts. (Ibid.; see also Wilson, supra, 122 F.3d at p. 708.) And, notwithstanding these fundamental differences, as we discuss in part II.E., post, if resort to racial or gender preferences is orbecomes necessaryas a corrective measure torectify invidious discrimination, then section 31 must yield to the federal Constitution. Indeed, the savings clause of section 31 mandates submission to that higher law. ( 31, subd. (h).) Construing section 31 as a whole as we must, we thus conclude that the constitutional amendment does not impermissibly restructure the political process in a manner that burdens the equal protection rights of racial and ethnic minorities and women.

E. The Trial Court Erred in Failing to Look at the Other Side of the Equation: Does the Federal Equal Protection Clause Mandate Race-conscious Legislation to Remedy Past Discrimination, Such That the Sway of Section 31s No-preferences Clause Must Yield to the Imperative of the Ordinance?

1. The Citys Position and the Trial Courts Ruling

The Citys stance on appeal is this: It has presented undisputed evidence documenting the ongoing race- and gender-based discrimination of its employees and prime contractors in the awarding of City contracts. The federal equal protection clause imposes an affirmative duty on the City to rectify this documented discrimination with continuation of the race- and gender-conscious programs set forth in the Ordinance. Applying section 31 to invalidate the Ordinance would preclude constitutionally mandated affirmative action programs, thereby impermissibly trumping the federal equal protection clause. Thus, respondents challenge must fail.

The trial court ruled as follows: The City argues that Hi-Voltage allows the City to act remedially when it has intentionally discriminated in the past. Hi-Voltage stated[:] Where the state or a political subdivision has intentionally discriminated, use of a race-conscious or race-specific remedy necessarily follows as the only, or at least the most likely, means of rectifying the resulting injury. [Citation.] The City states that its uncontested legislative findings, upon [which] the Ordinance is based, convert the Ordinance into a necessary, remedial measure. [] This Court does not find the Citys reliance on its historical disparity study compelling. Although the Court does not dispute the accuracy of the Citys study, it does not appear relevant in the context of this proceeding. The intent of the voters in adopting Proposition 209 was to outlaw race- and sex-based programs irrespective of the good will and moral position behind any particular program. The Ballot Pamphlet for Proposition 209 provides ample evidence that the voters acted with the intention to abolish any type of race- and sex-conscious program adopted by the City, regardless of its genesis. [Citation.] And nobody argues that Proposition 209 carved out an exception based on the concededly good intentions of the City when it created this remedial program.

The trial court was correct on the matter of the voters intent, and correct that Proposition 209 does not tolerate a good intentions caveat. However, it misunderstood the hierarchy of constitutional jurisprudence. The courts logic is flawed for two reasons. First, the issue was never whether section 31 could invalidate remedial efforts based on good intentions. The issue has always been whether the federal Constitution required the City to take the affirmative remedial steps set forth in the Ordinance in light of its assertion of pervasive past and ongoing discrimination. Second, the court assumed that section 31 is the last word. It is not. The federal equal protection clause is the last word. The court had no option but to engage in the appropriate analysis to determine whether the legislative history and supporting documents sustained the Citys claim of discrimination in public contracting and, if so, whether the City had a constitutional obligation to remedy this history by implementing and administering the Ordinance.

2. Pertinent Constitutional Principles

The most sweeping pronouncements concerning the governments duty to eradicate discrimination have developed in the context of public school desegregation. Local school boards that operated state-compelled dual systems of education have been clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch. (Green v. County School Board (1968) 391 U.S. 430, 437-438 [holding, at pp. 438-442, that school boards adoption of freedom-of-choice plan, 11 years after Brown v. Board ofEducation (1954) 347 U.S. 483, did not sufficiently respond to this mandate].) Similarly, in Board ofEducation v. Swann (1971) 402 U.S. 43, the high court struck down an antibusing statute that absolutely forbade assignment of any student on account of race or for the purpose of creating a racial balance in the schools. Assessed against the backdrop of segregation, a state policy directing that school assignment plans be color blind hindered vindication of federal constitutional guarantees and rendered illusory the promise of Brown v. Board of Education, 347 U. S. 483 (1954). Just as the race of students must be considered in determining whether a constitutional violation has occurred, so also must race be considered in formulating a remedy. To forbid, at this stage, all assignments made on the basis of race would deprive school authorities of the one tool absolutely essential to fulfillment of their constitutional obligation to eliminate existing dual school systems. (Board of Education v. Swann, supra, at p. 46.)

In the context public contracting programs, the court has employed a strict scrutiny standard to evaluate the constitutionality of remedies, such as minority set-asides, that rely on racial classifications. This standard is grounded in the proposition that classifications based on race generally are inimical to a society whose institutions are founded on the principle of equality. (Wygant v. Jackson Board of Education (1986) 476 U.S. 267, 273, plur. opn. of Powell, J.) Therefore,  [r]acial and ethnic distinctions of any sort are inherently suspect and . . . call for the most exacting judicial examination. (Ibid.) Any preference rooted in racial or ethnic criteria must be subject to a most searching examination to ensure constitutional compatibility. (Ibid.) This examination requires (1) that any racial classification  be justified by a compelling governmental interest and (2) that the means selected by the state to achieve its purpose must be narrowly tailored to the achievement of that goal. (Id. at p. 274.) Nonetheless, as the Supreme Court has recognized, in order to remedy the effects of prior discrimination, it may be necessary to take race into account. As part of this Nations dedication to eradicating racial discrimination, innocent persons may be called upon to bear some of the burden of the remedy. (Id. at pp. 280-281, plur. opn. of Powell, J., italics added.) Indeed, state actors have a constitutional duty to take affirmative steps to eliminate the continuing effects of past unconstitutional discrimination. (Id. at p. 291, conc. opn. of OConnor, J.) Stated a little differently, the State has the power to eradicate racial discrimination and its effects in both the public and private sectors, and the absolute duty to do so where those wrongs were caused intentionally by the State itself. (Croson, supra, 488 U.S. at p. 518, conc. opn. of Kennedy, J.)

Croson is pertinent to this case because it, too, involved a challenge to a city public contracting plan that granted certain preferences to minority business enterprises. There, the court overturned the City of Richmonds minority set-aside program because it did not have a sufficient factual predicate to justify imposing a racially classified remedy. The court explained that a generalized assertion that there has been past discrimination in an entire industry provides no guidance for a legislative body to determine the precise scope of the injury it seeks to remedy. (Croson, supra, 488 U.S. at p. 498.) Moreover, an amorphous claim that there has been past discrimination in a particular industry cannot justify the use of an unyielding racial quota. (Id. at p. 499.)

The court concluded that the predicate facts relied upon by the district court did not begin to approach a prima facie case of a constitutional or statutory violation by anyone in the Richmond construction industry. (Croson, supra, 488 U.S. at p. 500.) Those facts included (1) the city councils designation of the plan as  remedial ; (2) highly conclusionary statements of several supporters of the plan that racial discrimination in the construction industry existed locally, in the state and around the country; (3) the disparity between the percent of prime contracts awarded to minority firms as compared with the minority population in the city; (4) the dearth of minority contractors within the membership of local contractors associations; and (5) a prior congressional determination that there was nationwide discrimination in the construction industry. (Id. at pp. 499-504.) With respect to the third point, the court explained that when special qualifications are needed for a particular job, the relevant statistical pool for showing discriminatory exclusion is the number of minorities qualified to undertake the particular job, not the general population. (Id. at pp. 501-502.)

The court was also concerned that it was nearly impossible to determine whether the plan was narrowly tailored to remedy prior discrimination, since it was not linked to identified discrimination. The court criticized what appeared to be a lack of consideration of alternative, race-neutral ways to increase minority participation in city contracting. (Croson, supra, 488 U.S. at pp. 507-508.) Further, the quota rested on the faulty assumption that minorities would choose a particular trade in lockstep proportion to their representation in the city. (Id. at p. 508.)

The court reiterated, however, that with the appropriate evidentiary support, a public entity could take action to dismantle a discriminatory, closed business system that excluded minority contractors. (Croson, supra, 488 U.S. at p. 509, plur. opn.) And, [i]n the extreme case, some form of narrowly tailored racial preference might be necessary to break down patterns of deliberate exclusion. (Ibid.)

In Hi-Voltage our Supreme Court held that San Joses program to encourage participation by minority and women business enterprises in public works projects violated section 31. (Hi-Voltage, supra, 24 Cal.4th at pp. 564-565.)^[9] In reaching this conclusion the court also addressed the issue of whether and when some type of race-conscious remedy may be necessary in order for a city to discharge its duty under federal law to eradicate discrimination in public contracting: [T]he [United States Supreme] Court has insisted upon some showing of prior discrimination by the governmental unit involved before allowing limited use of racial classification in order to remedy such discrimination. [Citation.] Thus, the only constitutional obligation is the affirmative duty to desegregate [citations], also referred to as the duty to disestablish the results of intentional discrimination. [Citations.] Where the state or a political subdivision has intentionally discriminated, use of a race-conscious or race-specific remedy necessarily follows as the only, or at least the most likely, means of rectifying the resulting injury. [Citations.] (Hi-Voltage, supra, 24 Cal.4th at p. 568.)

If a city or other political subdivision were found to have engaged in intentional discrimination such that some type of race-based remedial program was necessary under the federal Constitution, the supremacy clause as well as section 31 dictate that federal law prevails: If any part or parts of this section are found to be in conflict with federal law or the United States Constitution, the section shall be implemented to the maximum extent that federal law and the United States Constitution permit. Any provision held invalid shall be severable from the remaining portions of this section. ( 31, subd. (h); see Hi-Voltage, supra, 24 Cal.4th at p. 569.)

Story Continued as Part III

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^[1]Although the City sprinkles this argument with as applied language, the heart of this matter is whether section 31 is a valid enactment, a matter more squarely resolved as a facial challenge to the constitutionality of section 31.

^[2]While Wilson would be considered persuasive authority, it is not binding on state courts. (Walker v. Kiousis (2001) 93 Cal.App.4th 1432, 1441.) A number of courts have referred to Wilson with approval. (See Hi-Voltage, supra, 24 Cal.4th at p. 561; Kidd v. State of California (1998) 62 Cal.App.4th 386, 408-410.) However, these cases do not resolve the constitutionality of section 31 under the Hunter/Seattle doctrine. That is for us to decide.

^[3]See also Coalition to Defend Affirmative Action v. Granholm (6th Cir. 2006) 473 F.3d 237, 250-251 (Granholm), in which the Sixth Circuit also rejected a similar equal protection challenge to Michigans Proposition 2, a statewide ballot initiative modeled after Californias Proposition 209.

^[4]The savings clause provides that if any part is found to be in conflict with federal law or the United States Constitution, the section shall be implemented to the maximum extent that federal law and the United States Constitution permit. ( 31, subd. (h).)

^[5]It is true that Proposition I was less than a repeal of our state equal protection clause because it retained in local school boards certain more expansive desegretative powers. However, that the voters did not choose to conform to the federal Constitution in all respects, but only receded part way, was irrelevant to the analysis in Crawford. In short, having gone beyond the requirements of the Federal Constitution, the State was free to return in part to the standard prevailing generally throughout the United States. It could have conformedits law to the Federal Constitution in every respect. (Crawford, supra,458 U.S. at p. 542, italics added.)

^[6]The Seattle court was well aware that the Akron measure failed as a direct attempt to legitimize a right to discriminate in real estate transactions on the basis of race. (Hunter, supra, 393 U.S. at pp. 559-560.) Two years before deciding Hunter,the highcourt had invalidated a California statewide initiative which prohibited the state from denying private property owners the right to decline to sell or lease their real property to such persons as they, in their absolute discretion, chose. (Reitman v.Mulkey (1967) 387 U.S. 369, 380-381.) In Reitman,the court had no trouble spotting the states involvement in private racial discrimination where the intent and effect of the initiative was to authorize racial discrimination in the housing market.

^[7]By dismissing as irrelevant any reading of Hunter and Seattle that examines the context for, and gives credence to, a racially discriminatory purpose informing the challenged legislation, the dissent moves the Hunter/Seattle doctrine too far afield from the core of equal protection jurisprudence. It is, after all, purposeful discrimination that offends the Fourteenth Amendment, for the central purpose of the Equal Protection Clause . . . is the prevention of official conduct discriminating on the basis of race. [Citation.] (Seattle, supra, 458 U.S. at p. 484.) Ultimately in both Seattle and Hunter, any distinction between the impact of the legislation and the legislative purpose to discriminate on the basis of race merge: No one reasonably could say that the impact in those cases was an unintended consequence of the legislation. Rather, the impactdiscrimination on the basis of racewas the purpose.

^[8]The dissent mischaracterizes this sentence as constituting our determination that one of the dual purposes of section 31 is to require racial and ethnic minorities and women to launch a statewide initiative in order to obtain such preferences. (Dis. opn., post, at pp. 18-19.) The purpose of section 31 is to ban discrimination and preferential treatment on the basis of race, ethnicity and gender in the operation of public employment, education and contracting. To state the obvious, once such preferences are banned, those impacted would have to take steps to undo the ban should they desire to do so. A potential impact is not the same thing as the legislative purpose.

^[9]Significantly, unlike the current situation, the City of San Jose conceded that its program was not constitutionally required. (Id. at p. 568.) Moreover, its disparity study was not part of the record, and thus the court had no way to measure the fit between the remedy and the goal of eliminating the disparity. (Id. at p. 569.)