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Hi-Voltage Wire Works11/30/2000
supra, 509 U.S. at p. 654.)
There is also no duty under federal statutory law to take corrective action in the absence of discrimination. The Supreme Court in Weber, supra, 443 U.S. 193, and Johnson, supra, 480 U.S. 616, only determined Title VII does not preclude an employer from utilizing race- and sex-conscious programs under certain circumstances. It did not find Title VII mandates such programs. In fact, Title VII expressly provides for the supremacy of state law "other than any such law which purports to require or permit the doing of any act which would be an unlawful employment practice under this subchapter." (42 U.S.C. § 2000e-7.) Moreover, the federal courts have held Proposition 209 does not conflict with Titles VI, VII, or IX of the Civil Rights Act. (Coalition II, supra, 122 F.3d at pp. 709-719 [Title VII]; Coalition I, supra, 946 F.Supp. at pp. 1517-1519 [titles VI and IX].) "The mere fact that affirmative action is permissible under the Title VI and IX regulations, and some judicial interpretation, does not require preemption of a state law that prohibits affirmative action." (Coalition I, supra, 946 F.Supp. at p. 1518.)
Third, if it were determined the City had violated federal constitutional or statutory law, the supremacy clause as well as the express terms of Proposition 209 would dictate federal law prevails: "If any part or parts of [section 31] 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." (§ 31, subd. (h); see also id., subds. (d) [preserving pre-existing court orders and consent decrees] & (e) [preserving any action necessary to establish or maintain eligibility for federal funding].)
Finally, we question the City's implicit premise that its Program meets the federal equal protection standard. As the Supreme Court explained in Wygant, supra, 476 U.S. 267, "the means chosen to accomplish the State's asserted purpose must be specifically and narrowly framed to accomplish that purpose. [Citation.] `Racial classifications are simply too pernicious to permit any but the most exact connection between justification and classification.' [Citation.]" (Id. at p. 280, fn. omitted.) The disparity study is not part of the record in this case. Without it, the court has no basis for measuring the fit between the Program and the goal of eliminating a disparity in the amount of contract dollars awarded MBE's in comparison to non-MBE's.
Disposition
The judgment of the Court of Appeal is affirmed.
WE CONCUR:
MOSK, J.
BAXTER, J.
CHIN, J.
CONCURRING OPINION BY MOSK, j.
I concur in the opinion of the court.
I write separately because, on one point, I wish to say somewhat more.
I.
I agree with the court in the substance of its analysis, which involves its reading of section 31 of article I of the California Constitution and its application to the City of San Jose's "Nondiscrimination/Nonpreferential Treatment Program" applicable to public contracts for construction projects in excess of $50,000.
A.
By initiative measure denominated as Proposition 209 on the ballot at the November 5, 1996, General Election, and approved by the voters thereat, section 31 was added to article I of the California Constitution.
Section 31 provides that " he State shall not discriminate 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 employ
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