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Hi-Voltage Wire Works11/30/2000
included with computer version.
"In the history of this Court and this country, few questions have been more divisive than those arising from governmental action taken on the basis of race." (Fullilove v. Klutznick (1980) 448 U.S. 448, 516 (conc. opn. of Powell, J.); see also DeFunis v. Odegaard (1974) 416 U.S. 312, 350 (dis. opn. of Brennan, J.).) In November 1996, the California voters added yet another chapter to the long and tortuous history of this question when they approved Proposition 209, which amended our Constitution to prohibit the state and its political subdivisions from "discriminat against, or grant 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." (Cal. Const., art. I, ยง 31.) Subsequent to the approval of Proposition 209, the City of San Jose adopted a program that requires contractors bidding on city projects to utilize a specified percentage of minority and women subcontractors or to document efforts to include minority and women subcontractors in their bids.
The question before the court is whether this program contravenes article I, section 31 of the California Constitution. Although the precise issue is a narrow one, the electorate did not approve Proposition 209 in a vacuum. Quite the contrary. Thus, while it may be possible to resolve the matter, as do the Chief Justice and Justice Kennard, simply by relying on differences between Proposition 209 and Title VII of the Civil Rights Act of 1964 or on the plain meaning of the initiative's language, we can discern and thereby effectuate the voters' intention only by interpreting this language in its historical context. Viewing the provisions of article I, section 31 from this perspective, it is clear the voters intended to adopt the original construction of the Civil Rights Act and prohibit the kind of preferential treatment accorded by this program.
Factual and Procedural Background
The salient facts, which are not in dispute, are drawn from the opinion of the Court of Appeal. In 1983, the City of San Jose (City) established a program to encourage public works projects participation by minority business enterprises (MBE's) and women business enterprises (WBE's). For each contract, the City set a "participation goal" based on the "availability and ability of the MBE and WBE to do the work to be contracted." To qualify as a "responsible bidder," a contractor had to meet or exceed this goal or demonstrate "reasonable efforts" to obtain MBE/WBE participation. "Reasonable efforts" entailed documenting written notice to at least four MBE's/WBE's soliciting them for the project, follow-up contact to determine their interest in bidding, and written reasons justifying rejection of an MBE's or WBE's low bid.
In 1989, the United States Supreme Court held in City of Richmond v. J. A. Croson Co. (1989) 488 U.S. 469, 498-507 (Croson), that a state government could not implement a program designed to remedy past discrimination absent a factual predicate substantiating an inference of prior discriminatory exclusion. Following Croson, in 1990 the City suspended its MBE/WBE program and commissioned a study to identify any statistically significant disparity in the number and dollar value of contracts and subcontracts awarded to MBE's and WBE's. The resulting report established such a disparity as to the amount of contract dollars awarded MBE subcontractors. In response, the City adopted the "MBE/WBE Construction Program" to encourage nondiscriminatory subcontracting. Like its predecessor, the new program included participation goals and required documenta
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