Lawsuit Targets Law That Brings Back Race & Sex-Based Quotas in State Contracting

Sacramento, CA; October 16, 2009: The California Legislature has violated the state constitution by trying to bring back race- and sex-based participation quotas in state contracting. So argues a lawsuit filed by attorneys with Pacific Legal Foundation, the leading legal watchdog against race- and sex-based discrimination and preferences in government.

The lawsuit challenges new contracting quota laws that were passed by the Legislature and signed by Governor Arnold Schwarzenegger as part of the state budget package enacted this past July. The quotas are unconstitutional, the lawsuit notes, because Proposition 209 – Article 1, section 31 ofthe California Constitution – prohibits discriminating against, and granting preferential treatment to, individuals and groups on the basis of race and sex in the operation of public contracting. Proposition 209 was enacted by California voters in 1996.

In the lawsuit, PLF attorneys represent Sacramento businessman and former University of California Regent Ward Connerly, who led the campaign for Proposition 209; and the American Civil Rights Foundation, a nonprofit organization dedicated to monitoring and enforcing civil rights laws at all levels of government.

Announcing today’s lawsuit, Ward Connerly issued this statement: "These new quotas are a destructive and illegal attempt to pull California backward – back to a time when government routinely judged people by their skin color and sex. By enacting Proposition 209, California voters said they wanted to move beyond that era of division, discrimination, and animosity. Unfortunately, the message still hasn’t gotten through to many state lawmakers and, apparently, not even to the governor. The courts are going to have to instruct them that their constitutional duty is to defend equal rights and equal opportunity, not undermine them."

The new quota laws require state departments to award public contracts to the lowest responsible bidder subcontracting 15 percent of the work to minority-owned business enterprises (MBE) and 5 percent to women-owned business enterprises (WBE). A bidder failing to meet this quota will have its bid rejected, even if it is the lowest bid.

The new quotas were enacted through AB 21, which amended Public Contract Code sections 10115.2, 10115,15, and 10471. (Sections 10115.2 and 10115.15 also include a disabled veteran business enterprise (DVBE) quota. This lawsuit is not challenging the DVBE quota.)

"By bringing back quotas, the Legislature and the governor ignored Proposition 209’s mandate that government must not treat anyone better or worse because of race or sex," said PLF Principal Attorney Sharon Browne. "They also disregarded principles of sound budgeting, because projects are more expensive when they don’t go to the lowest responsible bidder."

"Further, they ignored the clear command of the courts," Browne continued. "In 2000, the California Supreme Court found a similar municipal public contracting program unconstitutional because it violated Proposition 209." That case, also brought by PLF attorneys, was Hi-Voltage Wire Works v. City of San Jose, 24 Cal. 4th 537 (2000).

The lawsuit, challenging the new state contracting quotas as violating Proposition 209, is being filed as a petition for writ of mandate directly with the California Third District Court of Appeal. It is titled Ward Connerly and American Civil Rights Foundation v. Schwarzenegger, et. al. The petition may be found at PLF’s Web site: www.pacificlegal.org.

About Pacific Legal Foundation
Pacific Legal Foundation (www.pacificlegal.org) is the nation’s oldest and most successful public interest legal organization that litigates for limited government, property rights, individual rights, and a balanced approach to environmental regulations, in courts nationwide.