50 Cal. 4th 315, 235 P.3d 947, 113 Cal. Rptr. 3d 279

Filed 8/2/10



IN THE SUPREME COURT OF CALIFORNIA



CORAL CONSTRUCTION, INC.,

Plaintiff and Respondent,

S152934

v.

Ct.App. 1/4 A107803

CITY AND COUNTY OF SAN

FRANCISCO et al.,

(San Francisco County

Super. Ct. No. 319549)

Defendants and Appellants.

____________________________________)


SCHRAM CONSTRUCTION, INC.,

Plaintiff and Respondent,

v.

(San Francisco County

Super. Ct. No. 421249)

CITY AND COUNTY OF SAN

FRANCISCO et al.,

Defendants and Appellants.



Article I, section 31 of the California Constitution (section 31) forbids a city

awarding public contracts to discriminate or grant preferential treatment based on

race or gender. (See generally Hi-Voltage Wire Works, Inc. v. City of San Jose

(2000) 24 Cal.4th 537 (Hi-Voltage).) Here, a city whose public contracting laws

expressly violate section 31 challenges its validity under the so-called political

structure doctrine, a judicial interpretation of the federal equal protection clause.

1


(U.S. Const., 14th Amend.; see generally Washington v. Seattle School Dist. No. 1

(1982) 458 U.S. 457 (Seattle) and Hunter v. Erickson (1969) 393 U.S. 385

(Hunter).) We conclude section 31 does not violate the political structure

doctrine.

I. BACKGROUND

For the last 26 years, defendant City and County of San Francisco (City) has

preferentially awarded public contracts to minority-owned business enterprises

(MBE?s) and women-owned business enterprises (WBE?s). The City?s Board of

Supervisors (Board) has mandated these preferences in a series of ordinances

adopted over time, justifying each with legislative findings purporting to show

continuing discrimination by the City against MBE?s and WBE?s. The details of

the program have evolved, partly in response to changes in the law governing the

validity of such preferences. Plaintiffs Coral Construction, Inc. (Coral) and

Schram Construction, Inc. (Schram) challenge the 2003 version of the ordinance1

as unconstitutional under section 31.

The City?s first MBE/WBE ordinance, adopted in 1984, set aside specified

percentages of public contracting dollars for MBE?s and WBE?s. The ordinance

also gave bid discounts, which required the City?s contracting authorities to treat

bids by MBE?s and WBE?s as if they were lower than they in fact were. Both the

set-asides and the bid discounts afforded MBE?s and WBE?s a competitive

advantage over other bidders.

In 1989, the United States Court of Appeals for the Ninth Circuit held the

City?s 1984 ordinance violated the federal equal protection clause (U.S. Const.,


1

(Version V of ?Minority/Women/Local Business Utilization Ordinance,?

S.F. Ord. No. 134-03 (approved June 6, 2003, expired June 30, 2009 [see fn. 4,
post]) codified as S.F. Admin. Code, ? 12D.A.1?12D.A.22.)

2


14th Amend.) in giving preferences based on race, and that it also violated the

City?s own charter in several respects. (Assoc. Gen. Contr. of Cal. v. City &

County of S.F. (9th Cir. 1987) 813 F.2d 922, 944.) Shortly thereafter, the United

States Supreme Court determined that Richmond, Virginia?s MBE set-asides

violated equal protection. (Richmond v. J.A. Croson Co. (1989) 488 U.S. 469,

498-506 (Croson).) The legislative findings supporting Richmond?s program did

not show the requisite ? ?strong basis in evidence for [the city?s] conclusion that

remedial action was necessary.? ? (Id., at p. 500, quoting Wygant v. Jackson

Board of Education (1986) 476 U.S. 267, 277 (plur. opn. of Powell, J.).) Four

justices suggested, however, that in ?the extreme case? not presented in Croson,

?some form of narrowly tailored racial preference might be necessary? as a

remedy ?to break down patterns of deliberate exclusion.? (Croson, at p. 509 (plur.

opn. of O?Connor, J.).)

Responding to these judicial decisions, San Francisco?s Board in 1989 passed

a new ordinance eliminating set-asides but retaining bid discounts and other

preferences for MBE?s and WBE?s. When an organization of businesses sued to

enjoin the ordinance?s enforcement, the City argued the equal protection clause

required preferences as a remedy for discrimination. The federal district court

declined to issue interim relief because the plaintiffs had failed to demonstrate a

sufficient likelihood of success on the merits. (Associated General Contractors v.

San Francisco (N.D.Cal. 1990) 748 F.Supp. 1443, 1456.) The Ninth Circuit

affirmed. (Associated Gen. Contractors of Cal. v. Coalition (9th Cir. 1991) 950

F.2d 1401, 1418.)

The voters approved Proposition 209 at the November 1996 general election,

thus adding section 31 to article I of the state Constitution. Section 31 declares

that the state, including its political subdivisions, ?shall not discriminate against,

or grant preferential treatment to, any individual or group on the basis of race, sex,

3


color, ethnicity, or national origin in the operation of public employment, public

education, or public contracting.? (? 31, subd. (a).) The next year, the Ninth

Circuit held section 31 did not violate the federal equal protection clause, as

interpreted in the political structure cases (e.g., Seattle, supra, 458 U.S. 457, and

Hunter, supra, 393 U.S. 385), and vacated a preliminary injunction against section

31?s enforcement issued by the district court. (Coalition for Economic Equity v.

Wilson (9th Cir. 1997) 122 F.3d 692, 711 (Wilson), vacating judg. in (N.D.Cal.

1996) 946 F.Supp. 1480.)

At the time the voters adopted section 31, the MBE/WBE ordinance then in

effect was set to expire on October 31, 1998. Before the ordinance expired, the

City?s Board and its Human Rights Commission (HRC) conducted investigations

for the stated purpose of ?gaug[ing] the effectiveness of the prior [MBE/WBE]

Ordinances . . . and to assess the need for further and continuing action.? (S.F.

Admin. Code, former ? 12D.A.2.)2 The Board found that MBE?s and WBE?s

were receiving a smaller share of City contracts than would be expected based on

their availability, and that ?[t]his poor utilization [could not] be attributed to

chance? and was, instead, ?due to discrimination by the City and discrimination in

the private market.? (S.F. Admin. Code, former ? 12D.A.2.2.) In legislative

findings setting out the basis for this conclusion, the Board cited its own statistical

studies, similar studies by other governmental entities in the San Francisco Bay

Area, testimony and oral histories recounting anecdotes of discrimination, ?social


2

Citations to ?former? section 12D.A. of the San Francisco Administrative

Code refer to version IV of the ?Minority/Women/Local Business Utilization
Ordinance? (S.F. Ord. 296-98, approved Oct. 5, 1998). All other citations to
section 12D.A. refer to version V of this ordinance (S.F. Ord. 134-03, approved
June 1, 2003, expired June 30, 2008).

4


science materials concerning discrimination against women and minorities in the

Bay Area and in public contracting,? and data showing that ?the decision makers

in the City contracting process ? the City department heads and general and

deputy managers ? have been and continue to be overwhelmingly Caucasian

males? operating under an ? ?old boy network.? ? (S.F. Admin. Code, former

? 12.D.A.2 (findings 1, 15).)

Based on these findings, the Board in 1998 adopted a new ordinance

preserving bid discounts for MBE?s and WBE?s, and requiring prime contractors

either to use MBE and WBE subcontractors at levels set by the HRC or to make

good faith efforts to do so through preferential outreach efforts targeted at such

businesses. (S.F. Admin. Code, former ?? 12D.A.4, 12D.A.5, 12D.A.17.)

In 2000, while San Francisco?s 1998 ordinance was still in effect, we held

that section 31 invalidated the City of San Jose?s public contracting program

because it mandated participation goals for, and preferential outreach efforts

directed to, MBE?s and WBE?s. (Hi-Voltage, supra, 24 Cal.4th 537, 562-565.)

Section 31 does not tolerate, we explained, race- and gender-conscious preferences

the equal protection clause does not require but merely permits. (See Hi-Voltage,

at p. 567.) Like the plurality in Croson, supra, 488 U.S. 469, however, we held

out the possibility that the federal equal protection clause might sometimes require

race-conscious remedies to remedy intentional discrimination. (Hi-Voltage, at

p. 568 [?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.?]; see Croson, at

p. 509 (plur. opn. of O?Connor, J.).)

In 2001, plaintiff Coral commenced the action now before us in the San

Francisco Superior Court, seeking declaratory and injunctive relief against the

1998 ordinance. The ordinance was set to expire in 2003. (S.F. Admin. Code,

5


former ? 12D.A.21.) Before it expired, and while plaintiff?s action proceeded in

the superior court, the City conducted additional investigations to determine

whether discrimination against MBE?s and WBE?s continued. Finding that such

discrimination did continue, the Board in 2003 reenacted the 1998 ordinance

without substantial change. (See S.F. Admin. Code, ? 12D.A.2.8.) From that

point on, the action proceeded as a challenge to the 2003 ordinance.

In legislative findings accompanying the 2003 ordinance, the Board once

again relied on statistical studies showing that MBE?s and WBE?s were

underutilized, both in San Francisco and the surrounding area, on testimony and

oral histories recounting anecdotes of discrimination, and on social science

materials. (S.F. Admin. Code, ? 12D.A.2.) Based on this information, the Board

found that ?the race- and gender-conscious remedial programs authorized by [the

MBE/WBE] Ordinance continue to be necessary to remedy discrimination against

minority- and women-owned businesses in City prime contracting and

subcontracting.? (S.F. Admin. Code, ? 12D.A.2.8.) The Board also found ?that

the City . . . is actively discriminating against women and minority groups in its

contracting, and is passively participating in discrimination in the private sector.?

(Ibid.) In conclusion, the Board found ?that the evidence before it establishes that

the City?s current contracting practices are in violation of federal law and that, as a

result, [the] ordinance continues to be required by federal law to bring the City

into compliance with federal civil rights laws in its contracting practices.? (Ibid.)

More specifically, the Board found that ?the following discriminatory

practices [identified by the HRC in 1998 were still] at work in City contracting:

(1) listing [MBE?s and WBE?s] as subcontractors but never using the listed [MBE

and WBE] subcontracting firms, (2) the use of additional nonminority, male

subcontractors never listed on the relevant HRC forms, and (3) the creation of

fraudulent joint ventures involving minority- or women-owned and majority, men-

6


owned firms.? (S.F. Admin. Code, ? 12D.A.2.7.) The Board also noted the HRC

in 2003 ?ha[d] encountered . . . additional discriminatory practices in City

contracting,? including: ?(1) attempts by City personnel to improperly influence

contract selection panels to ensure that MBEs/WBEs do not obtain City prime

contracts; (2) attempts by City personnel to blame MBEs/WBEs unjustifiably for

project delays; (3) the imposition of unnecessary minimum requirements on City

contracts that act as a barrier to MBEs/WBEs; (4) the failure by City departments

to submit draft requests for proposals to HRC with sufficient time to permit the

HRC to ensure that adequate MBE/WBE subcontracting goals have been set;

(5) attempts by City departments to circumvent the requirements of [the 1998]

ordinance by extending or modifying existing contracts rather than putting new

contracts out to bid; (6) the failure by City departments to comply with the prompt

payment provisions of this ordinance which ensure that MBEs/WBEs do not suffer

unnecessary financial hardships; and (7) resistance by City prime contractors to

provid[ing] the City with required subcontractor payment information, making it

difficult for the City to ensure that MBE/WBE subcontractors receive prompt

payment for their work on City contracts.? (Ibid.)

The City?s 2003 statistical studies showed that MBE?s and WBE?s continued

?to receive a smaller share of certain types of contracts for the purchases of goods

and services by the City than would be expected? based on their availability. (S.F.

Admin. Code, ? 12.D.A.2.3.) The studies also showed, however, that MBE?s and

WBE?s received a larger share of other types of contracts. To note just a few

examples, the City used African-American MBE?s at 10 times, and WBE?s at

more than three times, the expected rate for professional services subcontracts, and

used Latino MBE?s at more than twice the expected rate for construction prime

and subcontracts. (S.F. Admin. Code, ?? 12D.A.2.4, 12D.A.2.5.) The Board

explained its overuse of MBE?s and WBE?s as ?attributable to the fact that the

7


City has remedial contracting programs in place,? and found that to discontinue

the use of preferences would cause MBE and WBE utilization rates to ?plummet.?

(Id., ? 12D.A.2.4.) In comparison, non-MBE/WBE firms were slightly overused

in most areas of City contracting, significantly overused in a few areas, and

substantially overused only in prime contracts for architecture and engineering (by

40 percent) and prime and subcontracts for telecommunications (by 10 and 23

percent, respectively).

In contrast to 1998, the Board in 2003 no longer found that decisionmakers in

the City?s contracting process were overwhelmingly Caucasian males. (Compare

S.F. Admin. Code, former ? 12D.A.2.1 with id., present ? 12D.A.2 [deleting the

prior finding].) The Board noted, however, that ?[m]inorities and women [had]

report[ed] that project managers in many City Departments continue to operate

under an ?old boy network[?] in awarding City prime contracts.? (Id.,

? 12.DA.2.6.)

The operative provisions of the 2003 ordinance give bid discounts that range

from 5 to 10 percent, depending on the level of MBE/WBE participation. (S.F.

Admin. Code, ? 12D.A.9.2.) For each proposed prime contract, the director of the

HRC sets MBE/WBE participation goals based on the availability of MBE/WBE

subcontractors and the extent of subcontracting opportunities available. (Id.,

? 12D.A.17(C).) Prospective prime contractors must demonstrate in their bids that

they have made good-faith efforts to use MBE/WBE subcontractors, and must also

identify the particular MBE/WBE subcontractors to be employed and the dollar

value of their participation. (Id., ? 12D.A.17(D).) The director may waive the

MBE/WBE subcontracting goals only on a showing that subcontracting is

infeasible given the project?s requirements, that MBE/WBE subcontractors are

unavailable, or that the available MBE?s/WBE?s ?have given price quotes that

exceed competitive levels beyond amounts that can be attributed to cover costs

8


inflated by the present effects of discrimination.? (Id., ? 12D.A.17(G)3; see also

id., ? 12D.A.17(G)1, 2.) Bids that do not satisfy these requirements, or that do not

meet the Director?s MBE/WBE participation goals, ?shall be declared

nonresponsive.? (Id., ? 12D.A.17(D).)

The 2003 ordinance defines ?minority,? and thus the groups whose

businesses are entitled to be certified as MBE?s, to include ?African Americans

(defined as persons whose ancestry is from any of the Black racial groups of

Africa or the Caribbean); Arab Americans (defined as persons whose ancestry is

from an Arabic speaking country that is a current or former member of the League

of Arab States); Asian Americans (defined as persons with Chinese, Japanese,

Korean, Pacific Islander, Samoan, Filipino, Asian Indian, and Southeast Asian

Ancestry); Iranian Americans (defined as persons whose ancestry is from the

country of Iran); Latino Americans (defined as persons with Mexican, Puerto

Rican, Cuban, Central American or South American ancestry[; p]ersons with

European Spanish ancestry are not included as Latino Americans . . .); and Native

Americans (defined as any person whose ancestry is from any of the original

peoples of North America, and who maintains cultural identification through tribal

affiliation or community recognition[)].? (S.F. Admin. Code, ? 12D.A.5.)

Finally, the 2003 ordinance declares as a matter of policy that ?[t]he City will

continue to rely on the relationship between the percentages of MBEs/WBEs in

the relevant sector of the San Francisco business community and their respective

shares of City contract dollars as a measure of the effectiveness of this ordinance

in remedying the effects of the aforementioned discrimination.? (S.F. Admin.

Code, ? 12D.A.3.)

After the City adopted the 2003 ordinance, plaintiff Schram commenced a

separate action challenging its validity under section 31 and seeking declaratory

and injunctive relief. Schram and the City filed cross-motions for summary

9


judgment. When briefing on the motions in Shram was complete, the parties to

Coral joined in the motions, and all parties in both cases stipulated that no further

briefing or record submissions would be necessary to permit the court to issue

rulings on summary judgment in both cases. In view of the stipulation, the

superior court consolidated Shram and Coral for all purposes.

The superior court granted plaintiffs? motion and denied the City?s. Relying

on Hi-Voltage, supra, 24 Cal.4th 537, the court held the 2003 ordinance violated

section 31. Relying on the Ninth Circuit?s decision in Wilson, supra, 122 F.3d

692, the court held section 31 did not violate the political structure doctrine.

Finally, the court concluded the ordinance was not required to avoid a loss of

federal funds and was, thus, not exempt from section 31 on that basis. (See ? 31,

subd. (e).3) As relief, the court entered a permanent injunction prohibiting the

City from enforcing the 2003 ordinance or any similar program in the future. The

Court of Appeal affirmed in part, reversed in part, and remanded for adjudication

of the City?s claim that the federal equal protection clause required the ordinance.

We granted review.4


3

?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).)

4

The 2003 ordinance expired by its own terms on June 30, 2008. (S.F.

Admin. Code, ? 12D.A.22.) The case is not therefore moot, however, because the
injunction bars the City from adopting any similar ordinance in the future, and
because there is no reason to believe the City would not, but for the injunction,
renew its long-standing mandate for race- and gender-based preferences. In any
event, no party has asked us to dismiss review.

10


II. DISCUSSION

A. The Political Structure Doctrine.

We first address the City?s argument that section 31 violates the political

structure doctrine ? an aspect of federal equal protection articulated in Seattle,

supra, 458 U.S. 457, and Hunter, supra, 393 U.S. 385. The City raised this issue

in its cross-motion for summary judgment as a ground for judgment in its favor.

Accordingly, the City?s burden is to show ?that there is no triable issue as to any

material fact and that [it] is entitled to judgment as a matter of law.? (Code Civ.

Proc., ? 437c, subd. (c).) We review the matter de novo because it comes to us as

a ruling on a motion for summary judgment. (Johnson v. City of Loma Linda

(2000) 24 Cal.4th 61, 67-68.) We requested briefing on the issue,5 and now hold

that section 31 does not violate equal protection.

To determine whether California?s section 31 is consistent with the federal

equal protection clause (U.S. Const., 14th Amend.) we must first make clear what

the state provision means. As the Legislative Analyst explained in the official

ballot pamphlet presenting the proposed measure to the voters, section 31 was

intended to ?eliminate state and local government affirmative action programs in

the areas of public employment, public education, and public contracting to the

extent these programs involve ?preferential treatment? based on race, sex, color,

ethnicity, or national origin. The specific programs affected by the measure,

however, . . . depend on such factors as (1) court rulings on what types of activities


5

Specifically, we asked whether ?article I, section 31, of the California

Constitution, which prohibits government entities from discrimination or
preference on the basis of race, sex, or color in public contracting, improperly
disadvantage[s] minority groups and violates equal protection principles by
making it more difficult to enact legislation on their behalf[.] (See [Seattle,
supra,] 458 U.S. 457; [Hunter, supra,] 393 U.S. 385.)?

11


are considered ?preferential treatment?[6] and (2) whether federal law requires the

continuation of certain programs.? (Ballot Pamp., Gen. Elec. (Nov. 5, 1996)

analysis of Prop. 209 by Legis. Analyst, p. 30.) Section 31?s ban on preferences

includes certain exceptions. The provision does not affect ?bona fide

qualifications based on sex? (? 31, subd. (c)), existing court orders or consent

decrees (id., subd. (d)), and actions which must be taken to avoid a loss of federal

funds to the state (id., subd. (e)). (See Ballot Pamp., supra, analysis of Prop. 209,

p. 30.)

Most importantly for present purposes, section 31 prohibits race- and gender-

conscious programs the federal equal protection clause permits but does not

require. As we explained in Hi-Voltage, supra, 24 Cal.4th 537, 567, ?[e]qual

protection allows discrimination and preferential treatment whenever a court

determines they are justified by a compelling state interest and are narrowly

tailored to address an identified remedial need.? In contrast, ?section 31

categorically prohibits discrimination and preferential treatment. Its literal

language admits no ?compelling state interest? exception [and] we find nothing to

suggest the voters intended to include one sub silentio.? (Ibid.) Section 31 poses

no obstacle, however, to race- or gender-conscious measures required by federal

law or the federal Constitution. This is the inescapable effect of the supremacy


6

In Hi-Voltage, supra, 24 Cal.4th 537, we concluded that section 31 uses the

terms ?discrimination? and ?preferential treatment? in their ? ?natural and ordinary
meanings . . . .? ? (Hi-Voltage, at p. 559, quoting Amador Valley Union High Sch.
Dist. v. State Bd. of Equalization
(1978) 22 Cal.3d 208, 245.) Thus, to
? ?[d]iscriminate? means ?to make distinctions in treatment; show partiality (in
favor of
) or prejudice (against),? ? and ? ?preferential? means giving ?preference,?
which is ?a giving of priority or advantage to one person . . . over others.? ? (Hi-
Voltage
, at pp. 559-560, quoting Webster?s New World Dict. (3d college ed. 1988)
pp. 392, 1062.)

12


clause (U.S. Const., art. VI, ? 2), which section 31 implicitly acknowledges in a

savings clause.7

Addressing an identical challenge to section 31, the Ninth Circuit in Wilson,

supra, 122 F.3d 692, 701, observed that, ?[a]s a matter of ?conventional? equal

protection analysis, there is simply no doubt that [section 31] is constitutional.?

The clause provides that ?[n]o state shall . . . deny to any person within its

jurisdiction the equal protection of the laws.? (U.S. Const., 14th Amend., ? 1.)

?A core purpose? of the clause is to ?do away with all governmentally imposed

discrimination based on race? (Palmore v. Sidoti (1984) 466 U.S. 429, 432,

fn. omitted), thus ultimately helping to create ?a political system in which race no

longer matters? (Shaw v. Reno (1993) 509 U.S. 630, 657). To further this goal, the

clause renders racial classifications presumptively invalid, regardless of purported

motivation (Nevada Dept. of Human Resources v. Hibbs (2003) 538 U.S. 721,

736; Personnel Administrator of Mass. v. Feeney (1979) 442 U.S. 256, 272), and

tolerates them only when narrowly tailored to serve compelling governmental

interests (Adarand Constructors, Inc. v. Pena (1995) 515 U.S. 200, 224, 226-227

(Adarand)). Section 31 is consistent with equal protection, under this analysis,

because ?[a] law that prohibits the State from classifying individuals by race or

gender a fortiori does not classify individuals by race or gender? (Wilson, at

p. 702), and because the federal Constitution does not oblige the state to permit

racial classifications the federal Constitution itself does not require. ?That the


7

?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.?
(? 31, subd. (h) [in relevant part].)

13


Constitution permits the rare race-based or gender-based preference hardly implies

that the state cannot ban them altogether.? (Id., at p. 708.)

To argue that section 31 violates equal protection, the City invokes the rarely

used political structure doctrine. The doctrine has its origin in Hunter, supra, 393

U.S. 385, and Seattle, supra, 458 U.S. 457, and its parameters necessarily emerge

from those decisions.

In Hunter, supra, 393 U.S. 385, a realtor in Akron, Ohio refused to show

homes to an African-American prospective buyer. When the buyer sued to

compel the city to enforce its fair housing ordinance, the city?s voters repealed the

ordinance and amended the city charter to require a referendum before any new

ordinance on the same subject could take effect. (Id., at pp. 386-387.) The high

court held the charter amendment violated equal protection. While the provision

?declare[d] no right to discriminate in housing? (id., at p. 389), it still contained

?an explicitly racial classification,? in the sense that it ?treat[ed] racial housing

matters differently from other racial and housing matters? (ibid.). ?The automatic

referendum system [did] not,? for example, ?reach housing discrimination on

sexual or political grounds, or against those with children or dogs, nor [did] it

affect tenants seeking more heat or better maintenance from landlords, nor those

seeking rent control, urban renewal, public housing, or new building codes.? (Id.,

at p. 391.) The referendum system placed a burden only on the minority, the court

explained, because ?[t]he majority needs no protection against discrimination and

if it did, a referendum might be bothersome but no more than that.? (Ibid.) While

the city might properly have changed the existing ordinance by ?majority vote at

[a] town meeting? (id., at p. 392), the city ?instead chose[] a more complex

system. Having done so,? the court concluded, ?the [city] may no more

disadvantage any particular group by making it more difficult to enact legislation

14


in its behalf than it may dilute any person?s vote or give any group a smaller

representation than another of comparable size.? (Id., at pp. 392-393.)

In Seattle, supra, 458 U.S. 457, the governing board of a Washington public

school district voluntarily adopted a plan to end de facto racial segregation by

busing pupils to reduce racial imbalance in individual schools. (Id., at pp. 460-

461.) The state?s voters responded by amending the state?s constitution to prohibit

busing for the purpose of desegregation, while still allowing busing for most of the

other reasons for which pupils were already being transported (e.g., to provide

special education and reduce overcrowding). (Id., at pp. 461-463, 471.) Relying

on Hunter, supra, 393 U.S. 385, the high court held the state constitutional

provision violated equal protection. The state provision, the court explained,

?remove[d] the authority to address a racial problem ? and only a racial problem

? from the existing decisionmaking body, in such a way as to burden minority

interests.? (Seattle, at p. 474.) The provision burdened minority interests by

?lodging decisionmaking authority over the question at a new and remote level of

government.? (Id., at p. 483.) As a result, ?[t]hose favoring the elimination of de

facto school segregation now must seek relief from the state legislature, or from

the statewide electorate,? while ?authority over all other student assignment

decisions, as well as over most other areas of educational policy, remains vested in

the local school board.? (Id., at p. 474.)

The ?political structure? doctrine that emerges from these decisions is

perhaps best summarized in the Seattle majority?s statement that ?the Fourteenth

Amendment . . . reaches ?a political structure that treats all individuals as equals,?

. . . 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. 457, 467, quoting Mobile v. Bolden (1980) 446 U.S. 55,

84 (conc. opn. of Stevens, J.).) The City argues this doctrine straightforwardly

15


invalidates section 31 because that provision uses the racial (or gender-based)

nature of an issue (i.e., preferences) to structure governmental decisionmaking, in

the sense that groups that seek race- or gender-based preferences in public

contracting, employment and education must first overcome the obstacle of

amending the state Constitution, while groups that seek preferences on other bases

(e.g., disability or veteran status) need not. Although superficially appealing, the

City?s argument is not ultimately persuasive. The United States Courts of Appeals

for the Sixth and Ninth Circuits have concluded the political structure doctrine

does not invalidate state laws that broadly forbid preferences and discrimination

based on race, gender and other similar classifications. (See Wilson, supra, 122

F.3d 692, 708-709; Coalition to Defend Affirmative Action v. Granholm (6th Cir.

2006) 473 F.3d 237, 251 (Granholm).) While the lower federal courts? decisions

do not bind us, we give them ?great weight? when they reflect a consensus, as they

do here. (Barrett v. Rosenthal (2006) 40 Cal.4th 33, 58; Etcheverry v. Tri-Ag

Service, Inc. (2000) 22 Cal.4th 316, 320-321.) Here, exercising our independent

judgment on the matter, we conclude the Sixth and Ninth Circuits? decisions are

correct on this point.

In Wilson, supra, 122 F.3d 692, as previously noted, the Ninth Circuit

rejected the City?s argument that section 31 violates the political structure doctrine

? the same argument the City now repeats in this court. In rejecting the

argument, the Ninth Circuit observed that ?[i]mpediments to preferential treatment

do not deny equal protection. It is one thing to say that individuals have equal

protection rights against political obstructions to equal treatment; it is quite

another to say that individuals have equal protection rights against political

obstructions to preferential treatment. While the [federal] Constitution protects

against obstructions to equal treatment, it erects obstructions to preferential

treatment by its own terms.? (Wilson, at p. 708, fn. omitted.) ?That the

16


Constitution permits the rare race-based or gender-based preference hardly implies

that the state cannot ban them altogether.? (Ibid.) The Sixth Circuit in Granholm

relied in part on the same reasoning in declining to issue preliminary injunctive

relief against a provision of the Michigan Constitution (id., art. I, ? 26) identical to

California?s section 31. (Granholm, supra, 473 F.3d 237, 251 [impediments to

preferential treatment do not deny equal protection, citing Wilson, at p. 708].)8

The City perceives no important difference between initiatives obstructing

equal treatment and initiatives banning preferences, describing both as ?plac[ing]

special burdens on the ability of minority groups to achieve beneficial legislation.?

(Seattle, supra, 458 U.S. 457, 467.) We do not think, however, that the term

?beneficial legislation? can bear the weight the City would place upon it. Nothing

in Hunter, supra, 393 U.S. 385, or Seattle supports extending the political

structure doctrine to protect race- or gender-based preferences that equal

protection does not require.

The ordinance repealed by Akron?s voters in Hunter, supra, 393 U.S. 385,

merely required equal treatment in the sale and lease of real property. (See id., at

p. 386.) The initiative repealing the ordinance had no apparent consequence but to

perpetuate the unequal treatment of minorities by depriving them of the benefit of

plainly constitutional legislation. (Cf. Reitman v. Mulkey (1967) 387 U.S. 369,

affg. Mulkey v. Reitman (1966) 64 Cal.2d 529.) In no sense did the case concern

preferences, and it therefore offers the City?s position no support.


8

(See also Coalition to Def. Aff. Act. v. Regents of U. of Mi. (E.D.Mich.

2008) 539 F.Supp.2d 924, 953-958 [dismissing action]; Coalition v. Regents of
University of Michigan
(E.D.Mich. 2008) 592 F.3d 948, 950-952 [denying motion
to alter or amend judgment].)

17


Relying instead on Seattle, supra, 458 U.S. 457, the City contends the local

pupil transportation programs involved in that case were ?designed to move many

students from schools nearest their homes in order to address ?racial imbalances?

in the schools [and thus] can only be described as providing affirmative, race-

conscious relief.? This characterization of Seattle is accurate, but only so far as it

goes. In arguing that Seattle protects presumptively unconstitutional racial

preferences, the City reads the decision without regard to its historical context and

thus unjustifiably extends its holding. Today the race-conscious pupil assignment

programs repealed by Washington?s voters would be presumptively

unconstitutional and, thus, subject to strict scrutiny. (See Parents Involved in

Community Schools v. Seattle School Dist. No. 1 (2007) 551 U.S. 701, 720

(Parents Involved).) But at the time Seattle was decided, the high court?s prior

decisions indicated that the assignment of pupils by ratios to achieve racial balance

fell ?within the broad discretionary powers of school authorities? to formulate

?educational policy? and to ?prepare students to live in a pluralistic society . . . .?

(Swann v. Board of Education (1971) 402 U.S. 1, 16; see also North Carolina

State Board of Education v. Swann (1971) 402 U.S. 43, 45.) Although the dissent

in Seattle argued that race-conscious pupil-assignment policies were

?presumptively invalid? and required an ?extraordinary justification? (see Seattle,

at p. 492, fn. 6 (dis. opn. of Powell, J.)), the majority did not address the

argument.9 Nor does anything in Seattle suggest the high court understood the

9

The majority in Seattle, supra, 458 U.S. 457, noted the litigants had ?not

challenge[d] the propriety of race-conscious student assignments for the purpose
of achieving integration, even absent a finding of prior de jure segregation.? (Id.,
at p. 472, fn. 15, citing Swann v. Board of Education, supra, 402 U.S. 1, 16, and
North Carolina State Board of Education v. Swann, supra, 402 U.S. 43, 45.) The
court ?therefore [did] not specifically pass on that issue.? (Seattle, at p. 472,
fn. 15.)

18


pupil assignment policies in question as providing unequal preferences, as

opposed simply to ? ?equal educational opportunity? ? (Seattle, at p. 479, italics

added, quoting Citizens Against Mandatory Bussing v. Palmason (Wn. 1972) 495

P.2d 657, 663) in the plain, immediate sense of sending pupils of different races to

the same schools. Accordingly, Seattle cannot fairly be read as holding that the

political structure doctrine protects presumptively unconstitutional racial

preferences, as opposed to programs intended to bring about immediate equal

treatment. ?Even a state law that does restructure the political process can only

deny equal protection if it burdens an individual?s right to equal treatment.?

(Wilson, supra, 122 F.3d 692, 707.)10

Instead of burdening the right to equal treatment, section 31 directly serves

the principle that ?all governmental use of race must have a logical end point.?

(Grutter v. Bollinger (2003) 539 U.S. 306, 342; see also Parents Involved, supra,
551 U.S 701, 760.) As noted, a ?core purpose? of the equal protection clause is to

?do away with all governmentally imposed discrimination based on race?

(Palmore v. Sidoti, supra, 466 U.S. 429, 432, fn. omitted), ultimately creating ?a

political system in which race no longer matters? (Shaw v. Reno, supra, 509 U.S.

630, 657). Racial preferences are presumptively unconstitutional (Nevada Dept.

of Human Res. v. Hibbs, supra, 538 U.S. 721, 736) and tolerated only when

narrowly tailored to serve compelling governmental interests (Adarand, supra,
515 U.S. 200, 224, 226-227). The requirement that such preferences withstand

strict scrutiny ?reflects that racial classifications, however compelling their goals,


10

We do not in any way question the political structure doctrine?s continuing

validity, despite suggestions to the contrary. (E.g., conc. & dis. opn. of Moreno,
J., post, at pp. 2, 38.) Instead, we merely read Seattle, supra, 458 U.S. 457, in its
historical context to determine how far its holding extends, as we must.

19


are potentially so dangerous that they may be employed no more broadly than the

interest demands. Enshrining a permanent justification for racial preferences

would offend this fundamental equal protection principle.? (Grutter v. Bollinger,

supra, at p. 342.)11 Accordingly, even in the rare case in which racial preferences

are required by equal protection as a remedy for discrimination, the governmental

body adopting such remedies must undertake an extraordinary burden of

justification ?to assure all citizens that the deviation from the norm of equal

treatment of all racial and ethnic groups is a temporary matter, a measure taken in

the service of the goal of equality itself.? (Croson, supra, 488 U.S. 469, 510.) In

contrast, a generally applicable rule forbidding preferences and discrimination not

required by equal protection, such as section 31, does not logically require the

same justification.12

For all of these reasons, we conclude the political structure doctrine does not

invalidate section 31.

B. The Federal Funding Exception.

The City next contends the 2003 ordinance is unaffected by section 31

because the ordinance falls within the exception set out in subdivision (e):

?Nothing in this section shall be interpreted as prohibiting action which must be


11

The high court in Grutter v. Bollinger, supra, 539 U.S. 306, 337, rejected

an equal protection challenge to a law school admissions policy that used race,
without preferential quotas, as one factor ?in a highly individualized, holistic
review of each applicant?s file . . . .? In its decision, the court noted that states
?can and should draw on the most promising aspects of . . . race-neutral
alternatives as they develop? in states such as ?California . . . , where racial
preferences in admissions are prohibited by state law [e.g., section 31] . . . .? (Id.,
at p. 342.)

12

Again, section 31 does not affect preferences required by the federal equal

protection clause. (See ? 31, subd. (h); see also ante, at pp. 12-13.)

20


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, which receives federal funds for a variety of projects, argues it is

compelled to enforce the 2003 ordinance by specific federal regulations imposing

affirmative action obligations on cities that receive funds. We asked the parties to

brief the issue13 and now hold, as did the lower courts, that the City?s argument

lacks merit.

The City invokes the federal funding exception (? 31, subd. (e)) not as a basis

for its own motion for summary judgment but, rather, as an argument against

plaintiffs? motion. Accordingly, the City?s burden is to show that a triable issue of

fact exists. (Code Civ. Proc., ? 437c, subd. (c); see Aguilar v. Atlantic Richfield

Co. (2001) 25 Cal.4th 826, 849.) The superior court did not mention the federal

funding argument in its written ruling granting plaintiffs? motion. The Court of

Appeal, however, discussed and rejected the argument, concluding that the

relevant federal regulations do not require racial preferences and that the City has

not, in any event, made a sufficient factual showing of past discrimination to

trigger any obligation under the regulations. Of these two grounds, we find the

first dispositive and thus do not reach the second.14


13

Specifically, we asked the parties whether ?an ordinance that provides

certain advantages to minority- and female-owned business enterprises with
respect to the award of city contracts fall[s] within an exception to section 31 for
actions required of a local government entity to maintain eligibility for federal
funds under the federal Civil Rights Act (42 U.S.C. ? 2000d)[.]?

14

Accordingly, our analysis and disposition of this issue do not depend on

whether the City on remand proves, or fails to prove, that it has purposefully
discriminated against MBE?s and WBE?s. (See post, at p. 24 et seq.) We address
here only the question whether the relevant federal regulations, independently of
the federal equal protection clause (U.S. Const., 14th Amend.), require the 2003


(footnote continued on next page)

21


The City?s argument begins with the Civil Rights Act of 1964, title VI, which

provides that ?[n]o 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.) Title VI also authorizes and directs

?[e]ach Federal department and agency which is empowered to extend Federal

financial assistance to any program or activity . . . to effectuate the provisions of

section 2000d of this title with respect to such program or activity by issuing rules,

regulations, or orders of general applicability which shall be consistent with the

achievement of the objectives of the statute authorizing the financial assistance in

connection with which the action is taken.? (42 U.S.C. ? 2000d-1.) Exercising

this rulemaking authority, the Environmental Protection Agency and the Secretary

of Transportation have issued regulations forbidding discrimination in the projects

they fund and requiring ?affirmative action? in specified circumstances. (40

C.F.R. ? 7.35(a)(7) (2010) [environmental protection];15 49 C.F.R. ? 21.5(b)(7)

(2009) [transportation].16) In neither regulation, however, is the term ?affirmative



(footnote continued from previous page)

ordinance. If the federal equal protection clause itself requires the 2003 ordinance,
then the City?s claim under the federal regulations has no practical significance.

15

?In administering a program or activity receiving Federal financial

assistance in which the recipient has previously discriminated on the basis of race,
color, sex, or national origin, the recipient shall take affirmative action to provide
remedies to those who have been injured by the discrimination.? (40 C.F.R.
? 7.35(a)(7) (2010).)

16

?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


(footnote continued on next page)

22


action? defined. (Cf. 40 C.F.R. ? 7.25 (2010) [environmental protection;

definitions]; 49 C.F.R. ? 21.23 (2009) [transportation; definitions].)

The City contends these regulations compelled it to adopt the 2003 ordinance

to avoid a loss of federal funding. We do not agree. Although the regulations use

the broad, undefined term ?affirmative action,? no intention to require racial

preferences emerges from their plain language. The Environmental Protection

Agency?s regulation requires a recipient of federal funds who has ?previously

discriminated? to ?take affirmative action to provide remedies to those who have

been injured by the discrimination.? (40 C.F.R. ? 7.35(a)(7) (2010), italics

added.) In this context, the term ?affirmative action? clearly refers not to race-

based remedies but, rather, to actions taken to benefit the specific victims of past

discrimination. The regulation thus cannot logically mandate an ordinance like the

City?s, which confers preferences on bidders based on race without regard to

specific instances of past discrimination. The Secretary of Transportation?s

regulation more broadly requires the recipients of federal funds to take

?affirmative action to ensure that no person is excluded from participation? in a

federally funded program ?[e]ven in the absence of prior discriminatory practice



(footnote continued from previous page)

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 or activity to which this part applies, the applicant or recipient
must take affirmative action 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) (2009).)

23


or usage . . . .? (49 C.F.R. ? 21.5(b)(7) (2009).) The regulation also mentions

race-based remedies but is on this point expressly permissive, stating that it ?does

not prohibit the consideration of race . . . to overcome the consequences? of past

discrimination. (Ibid., italics added.) The unmistakable import of this language is

not that race-based remedies are required, but simply that they are permitted, so

far as the Secretary is concerned, if no other law precludes them. That the

Secretary has no objection to race-based remedies does not establish the federal

compulsion required to exempt the City?s 2003 ordinance from section 31.

For these reasons, we find no merit in the argument that the federal funding

exception (? 31, subd. (e)) exempts the 2003 ordinance from section 31?s general

prohibition of racial preferences. No triable issue of fact exists on this point to

preclude summary judgment for plaintiffs.

C. The Federal Compulsion Argument.

Finally, the City contends the federal equal protection clause (U.S. Const.,

14th Amend.) requires the 2003 ordinance as a remedy for the City?s own

discrimination. Although the superior court granted summary judgment for

plaintiffs, the court did not meaningfully address the City?s federal compulsion

argument. The Court of Appeal reversed the superior court?s decision to this

extent and remanded the case ?for the limited purpose of adjudicating this issue.?

Plaintiffs petitioned for review, and we directed the parties to brief the question.17

We hold the Court of Appeal ruled correctly and affirm its judgment remanding

for further proceedings.


17

Specifically, we asked whether ?the Court of Appeal properly remand[ed]

the case to the trial court to determine in the first instance whether the ordinance
was required by the federal equal protection clause as a narrowly tailored remedial
program to remedy ongoing, pervasive discrimination in public contracting[.]?

24


Plaintiffs assert two procedural objections to remanding for further

proceedings. Both lack merit. First, plaintiffs suggest the City failed to carry its

burden in the superior court and is merely seeking a second, undeserved chance to

do so. Plaintiffs mischaracterize the procedural posture. Because the City raised

the federal compulsion theory as an argument against plaintiffs? motion for

summary judgment, the City?s burden was to show that triable issues of fact exist.

(Code Civ. Proc., ? 437c, subd. (c); see Aguilar v. Atlantic Richfield Co., supra, 25

Cal.4th 826, 849.) All parties have stipulated that no additional briefing or record

submissions are necessary; the City seeks only a hearing in the superior court to

determine whether it has carried its burden. Second, plaintiffs contend the City

did not properly plead its federal compulsion theory. To the extent the City was

required to plead the theory, the City did so by alleging in its answer as an

affirmative defense that plaintiff Schram?s complaint ?is barred on the ground that

the federal Constitution preempts the application of Proposition 209 [i.e., section

31] to invalidate the Ordinance.? Plaintiffs never objected in the lower courts that

the City?s pleading was insufficient to preserve the issue. Instead, plaintiffs

responded on the merits, thus waiving the objection. (Neverkovec v. Fredericks

(1999) 74 Cal.App.4th 337, 346, fn. 5.)

Certainly we have the power to decide the federal compulsion issue in the

first instance. We owe the superior court no deference in reviewing its ruling on a

motion for summary judgment; the standard of review is de novo. (Johnson v.

City of Loma Linda, supra, 24 Cal.4th 61, 67-68.) Furthermore, ?[i]t is axiomatic

that we review the trial court?s rulings and not its reasoning.? (People v. Mason

(1991) 52 Cal.3d 909, 944.) Thus, a reviewing court may affirm a trial court?s

decision granting summary judgment for an erroneous reason. (D?Amico v. Board

of Medical Examiners (1974) 11 Cal.3d 1, 18-19.) In this case, however, we see

no detriment and some benefit in affording the City the hearing in the superior

25


court to which all litigants are entitled as a matter of course. (Code Civ. Proc.,

? 437c, subd. (a).) Unlike the political structure and federal funding issues, which

we may resolve as questions of law, the federal compulsion claim is largely factual

and depends on the evidence supporting the Board?s decision to adopt race-

conscious legislation. When the government seeks to defend actions based on race

as remedial, there must be ? ?a strong basis in evidence for its conclusion that

remedial action was necessary.? ? (Croson, supra, 488 U.S. 469, 500; quoting

Wygant v. Jackson Board of Education, supra, 476 U.S. 267, 277 (plur. opn. of

Powell, J.).) We expect the superior court?s assessment of the record will assist

the reviewing courts, if necessary, in determining whether a strong basis in the

evidence does in fact support the City?s decision to adopt the 2003 ordinance.18

We offer the following comments to assist the superior court in resolving the

federal compulsion issue on remand: While the parties have not brought to our


18

One remaining procedural issue lies uniquely within the superior court?s

knowledge. The parties disagree on whether or not the City?s responses to
plaintiff Coral?s requests for admission are properly part of the record for purposes
of summary judgment. The answer depends on how one interprets the parties?
stipulation concerning the record ? a stipulation solicited and approved by the
superior court. (See ante, at p. 10.)

The City?s admissions have possible significance, as they appear to

concede, subject to certain objections and qualifications: (1) that since at least
April 2, 1984, it has not been a policy of the City to discriminate against MBE?s or
WBE?s; (2) that the City cannot identify a specific contract on which a prime
contractor discriminated against an MBE or WBE subcontractor after November
5, 1996, where the MBE or WBE was the lowest responsive bidder; and (3) that
the City has not identified any specific contract-awarding authority which
discriminated against an MBE or WBE in the awarding of one of the City?s public
contracts after November 5, 1996. The superior court on remand should determine
whether the City?s admissions are properly part of the record for summary
judgment, as defined by the parties? stipulation, and, if so, the admissions? bearing
on the question of whether triable issues of fact exist.

26


attention any decision ordering a governmental entity to adopt race-conscious

public contracting policies under the compulsion of the federal equal protection

clause, the relevant decisions hold open the possibility that race-conscious

measures might be required as a remedy for purposeful discrimination in public

contracting. (Hi-Voltage, supra, 24 Cal.4th 537, 568 [?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.? ]; see also Croson, supra, 488 U.S. 469,

509 (plur. opn. of O?Connor, J.) [?In the extreme case, some form of narrowly

tailored racial preferences might be necessary to break down patterns of deliberate

exclusion.?].)

All racial classifications, even those contained in ostensibly remedial laws,

must survive strict scrutiny. (Parents Involved, supra, 551 U.S. 701, 720;

Adarand, supra, 515 U.S. 200, 226-227.) This is because ? ? ?racial classifications

are simply too pernicious to permit any but the most exact connection between

justification and classification.? ? ? (Parents Involved, at p. 720, quoting Gratz v.

Bollinger (2003) 539 U.S. 244, 270.) Under the strict scrutiny test, ?such

classifications are constitutional only if they are narrowly tailored measures that

further compelling governmental interests.? (Adarand, at p. 227.) The only

possibly compelling governmental interest implicated by the facts of this case is

the interest in providing a remedy for purposeful discrimination. (See Croson,

supra, 488 U.S. 469, 500; see also id., at p. 509 (plur. opn. of O?Connor, J.); Hi-

Voltage, supra, 24 Cal.4th 537, 568.)19 In any event, proof of discriminatory


19

In contrast, outright racial balancing is ?patently unconstitutional? and not a

compelling state interest that can properly justify racial classifications. (Grutter v.


(footnote continued on next page)

27


purpose or intent is always required to show a violation of the federal equal

protection clause (Arlington Heights v. Metropolitan Housing Corp. (1977) 429

U.S. 252, 265), and remedial action must actually be necessary (Croson, at

p. 500).

Accordingly, to defeat plaintiffs? motion for summary judgment, the City

must show that triable issues of fact exist on each of the factual predicates for its

federal compulsion claim, namely: (1) that the City has purposefully or

intentionally discriminated against MBE?s and WBE?s; (2) that the purpose of the

City?s 2003 ordinance is to provide a remedy for such discrimination; (3) that the

ordinance is narrowly tailored to achieve that purpose; and (4) that a race- and

gender-conscious remedy is necessary as the only, or at least the most likely,

means of rectifying the resulting injury. If any of these points can be resolved as a

matter of law in plaintiffs? favor, it follows that the City cannot establish federal

compulsion and that plaintiffs are entitled to summary judgment.20


(footnote continued from previous page)

Bollinger, supra, 539 U.S. 306, 330; see also, e.g., Parents Involved, supra, 551
U.S. 701, 730; cf. Croson, supra, 488 U.S. 469, 507-508.)

20

We note the Board?s legislative findings on these points do not bind the

court on remand. Although ?[t]he factfinding process of legislative bodies is
generally entitled to a presumption of regularity and deferential review by the
judiciary? (Croson, supra, 488 U.S. 469, 500), ?[r]acial classifications are suspect,
and that means that simple legislative assurances of good intention cannot suffice?
(ibid.). ?The history of racial classifications in this country suggests that blind
judicial deference to legislative or executive pronouncements of necessity has no
place in equal protection analysis.? (Id., at p. 501.)

A legislative body cannot preclude searching judicial review of

presumptively unconstitutional racial classifications with findings to the effect that
such classifications are necessary, however much supporting evidence is claimed
to exist. Certainly a legislative body must have a strong basis in evidence for
determining that race-conscious remedial action is necessary (see Croson, supra,


(footnote continued on next page)

28


On remand, the superior court is to consider the federal compulsion issue

based on the existing record in accordance with the ?Stipulation of All Counsel

That No Additional Briefing or Record Submissions Are Required for

Consolidation? (July 9, 2004).

III. DISPOSITION

The judgment of the Court of Appeal is affirmed.

WERDEGAR, J.

WE CONCUR:

GEORGE, C.J.
KENNARD, J.
BAXTER, J.
CHIN, J.
CORRIGAN, J.



(footnote continued from previous page)

488 U.S. 469, 500), and ?evidence which would support a judicial finding of
intentional discrimination may suffice also to justify remedial legislative action,?
even before a court has ordered it (id., at p. 519 (conc. opn. of Kennedy, J.)). (Cf.
conc. & dis. opn. of Moreno, J., post, at pp. 41-42.) But to say that a legislative
body can and must act on appropriate evidence does not mean that legislative
findings constrain judicial review. The high court?s decision in Croson is
precisely to the contrary, and our decisions are in accord: ? ? ?[T]he deference
afforded to legislative findings does ?not foreclose [a court?s] independent
judgment on the facts bearing on an issue of constitutional law.? ? ? ? (American
Academy of Pediatrics v. Lungren
(1997) 16 Cal.4th 307, 350, quoting
Professional Engineers v. Department of Tranportation (1997) 15 Cal.4th 543,
569; see also Spiritual Psychic Science Church v. City of Azusa (1985) 39 Cal.3d
501, 514.)

29












CONCURRING OPINION BY CORRIGAN, J.

I concur fully in the judgment affirming the Court of Appeal?s decision. I

write separately to set out an alternative ground for distinguishing the ?political

structure? cases, particularly Washington v. Seattle School Dist. No. 1 (1982) 458

U.S. 457 (Seattle), where the high court gave its broadest explanation of that equal

protection doctrine. As the majority opinion explains, the Seattle court held that a

statewide initiative measure prohibiting busing for the purpose of school

integration violated the equal protection clause by singling out this racial issue and

removing it from local control, ?requir[ing] those championing school integration

to surmount a considerably higher hurdle than persons seeking comparable

legislative action.? (Seattle, at p. 474; see maj. opn., ante, at p. 15.)

Here, the City and County of San Francisco (City) contends that article I,

section 31 of the California Constitution (section 31) similarly burdens minority

interests, by imposing a statewide ban on racial or gender preferences in public

contracting. The majority opinion reasons that the busing program at issue in

Seattle was understood by the court in terms of equal educational opportunity, not

racial preferences. Therefore, the majority concludes, Seattle?s holding does not

extend to racial preferences, which are presumptively unconstitutional under

subsequent United States Supreme Court decisions. (Maj. opn., ante, at pp. 17-

19.)

1


I am not sure this distinction goes far enough. Affirmative action programs

always purport to ensure equal opportunity. The City may fairly claim that its

contracting ordinance is meant to provide minority businesses with equal access to

City contracts. (See maj. opn., ante, at pp. 6-9.) Conceivably, it could rewrite the

ordinance to avoid any mention of preferences, yet awards of public contracts to

minority businesses in the name of equal opportunity would be no less

burdensome to other businesses that lost contracts as a result.1 Whether a

government benefit is awarded on the basis of a ?preference? or a requirement of

?equal treatment? is largely a matter of semantics.

I am, however, convinced that Seattle does not apply in this case for

additional reasons. The Seattle court made it plain that it was most concerned

about the anti-busing initiative?s narrow focus on the racial aspect of school

assignments:

?[W]hen the political process or the decisionmaking mechanism used to

address racially conscious legislation ? and only such legislation ? is singled out

for peculiar and disadvantageous treatment, the governmental action plainly ?rests

on ?distinctions based on race.? ? [Fn. omitted.] James v. Valtierra, 402 U.S., at

141, quoting Hunter v. Erickson, 393 U.S., at 391. And when the State?s

allocation of power places unusual burdens on the ability of racial groups to enact

legislation specifically designed to overcome the ?special condition? of prejudice,

the governmental action seriously ?curtail[s] the operation of those political

processes ordinarily to be relied upon to protect minorities.? United States v.


1

As the high court has observed in the equal protection context, ?[t]he

principle that racial balancing is not permitted is one of substance, not semantics.?
(Parents Involved in Community Schools v. Seattle School Dist. No. 1 (2007) 551
U.S. 701, 732 (Parents Involved).) Surely the same reasoning applies under
section 31.

2


Carolene Products Co., 304 U.S. 144, 153, n. 4 (1938). In a most direct sense,

this implicates the judiciary?s special role in safeguarding the interests of those

groups that are ?relegated to such a position of political powerlessness as to

command extraordinary protection from the majoritarian political process.? San

Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 28 (1973).? (Seattle,

supra, 458 U.S. at pp. 485-486, italics omitted; see also id. at p. 474 [?The

initiative removes the authority to address a racial problem ? and only a racial

problem ? from the existing decisionmaking body, in such a way as to burden

minority interests.?].)

Section 31 does not implicate this concern. It does not single out racial

issues or racially oriented legislation for special treatment. It applies broadly to

discrimination or preferential treatment ?on the basis of race, sex, color, ethnicity,

or national origin.? (? 31.) The inclusion of gender among the affected groups is

particularly important, because it significantly broadens the application of the

measure. The voters did not focus on a politically powerless racial minority,

making it uniquely difficult for that group to achieve beneficial legislation. To the

contrary, they passed a sweeping reform abolishing preferential treatment for a

range of groups that includes everyone in the state, in various ways. Both the

Ninth Circuit Court of Appeals, when it reviewed the constitutionality of section

31, and the Sixth Circuit, when it passed on the parallel Michigan measure, relied

in part on such considerations to distinguish Seattle. (Coalition for Economic

Equity v. Wilson (9th Cir. 1997) 122 F.3d 692, 707 (Wilson); Coalition to Defend

Affirmative Action v. Granholm (6th Cir. 2006) 473 F.3d 237, 250-251.)

Section 31 is also quite different from the narrow anti-busing measure

struck down in Seattle because it does not take aim at a particular government

activity. It applies generally to a wide range of functions, barring discrimination

or preferences in ?public employment, public education, [and] public contracting.?

3


(? 31.) As the Seattle court noted, ?[w]hen political institutions are more

generally restructured . . . ?[t]he very breadth of [the] scheme . . . negates any

suggestion? of improper purpose.? 2 (Seattle, supra, 458 U.S. at p. 486, fn. 30.)

Section 31 was a sea change in state policy, of a kind not present in Seattle or any

other ?political structure? case. For the foregoing reasons, I agree with the

majority that the ?political structure doctrine? does not invalidate section 31.

As alluded to in the majority opinion, the equal protection jurisprudence of

the United States Supreme Court has undergone a change similar in scale to the

reform enacted by section 31. Where the Seattle court once carefully guarded the

prerogative of school districts to pursue desegregation programs, the Parents

Involved court recently held that such programs themselves employ presumptively

unconstitutional racial classifications and are subject to strict judicial scrutiny.

The court has broadly called for a ?logical end point? to ?all governmental use of

race,? and approvingly referred to section 31 as a step in that direction. (Grutter v.

Bollinger (2003) 539 U.S. 306, 342; maj. opn., ante, pp. 19-20.) The various

opinions issued by this court in this case reflect the difficulty of squaring the

?political structure doctrine? with modern equal protection jurisprudence. Like


2

The quotation in this passage from Seattle was taken from a concurring

opinion in Walz v. Tax Commission (1970) 397 U.S. 664, 689, a case involving tax
exemptions for religious institutions. That opinion also states: ?Government may
properly include religious institutions among the variety of private, nonprofit
groups that receive tax exemptions, for each group contributes to the diversity of
association, viewpoint, and enterprise essential to a vigorous, pluralistic society.
[Citation.] To this end, New York extends its exemptions not only to religious and
social service organizations but also to scientific, literary, bar, library, patriotic,
and historical groups, and generally to institutions ?organized exclusively for the
moral or mental improvement of men and women.? ? (Ibid. (conc. opn. of
Brennan, J.).)


Although the context is different, section 31 also extends its reach to a

variety of activities and groups.

4


the Wilson court, we have been ?perplexed? by the persistence of this

anachronistic feature of federal constitutional law. (Wilson, supra, 122 F.3d at p.

704; see also id. at p. 705, fn. 13 [noting ?seemingly irreconcilable Supreme Court

precedent?]; Coalition to Defend Affirmative Action v. Regents of Univ. of Mich.

(E.D. Mich. 2008) 592 F.Supp.2d 948, 951 [noting ?unevenness? created by

Seattle].)3

It would be helpful for the United States Supreme Court to clarify matters

by directly addressing the continued viability of the ?political structure doctrine,?

in an appropriate case. The broad statements in Seattle casting suspicion on laws

that may be characterized as ?special burdens on the ability of minority groups to

achieve beneficial legislation? (Seattle, supra, 458 U.S. at p. 467), or as attempts

to ?make[] the enactment of racially beneficial legislation difficult? (id. at p. 483),

lend themselves to arguments distinctly at odds with the high court?s own

approach to racial classifications in such later cases as Parents Involved. Justice

Moreno, of course, is correct when he points out that only the high court can

ultimately resolve this tension. (See dis. opn., post, at pp. 38-39.)

CORRIGAN, J.


3

The high court itself has avoided employing the doctrine, even when its

applicability was plain. (Romer v. Evans (1996) 517 U.S. 620, 625-626; see Evans
v. Romer
(Colo. 1993) 854 P.2d 1270, 1279-1282.)

5












CONCURRING AND DISSENTING OPINION BY MORENO, J.

California voters passed Proposition 209 in 1996, adding section 31 to

article I of the state Constitution (section 31). The provision forbids public entities

from discriminating against, ?or grant[ing] 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), italics added.) This court later construed section 31 to ban not

only preferences already prohibited by the federal equal protection clause (U.S.

Const., 14th Amend., ? 1), but also race- and sex-conscious remedial measures that

the United States Constitution would otherwise permit. (Hi-Voltage Wire Works,

Inc. v. City of San Jose (2000) 24 Cal.4th 537, 567 (Hi-Voltage).) We are now asked

to resolve whether section 31 violates the federal Constitution.1

At the outset, I note several uncontroversial facts. Despite language

forbidding discrimination (which added nothing to existing law), there can be little

doubt Proposition 209 was enacted because of its effect on race- and sex-

conscious preferences (and, given the ballot materials, primarily the former). Nor

is there any serious uncertainty that the race- and sex-conscious preferences


1

Unless otherwise noted, all subsequent references to a Constitution or an

equal protection clause are to the federal Constitution and the federal equal
protection clause.

1


eliminated by section 31 primarily benefitted racial minorities and women and

were so intended. Finally, it is uncontroverted that Proposition 209 did more than

merely repeal existing programs; by amending the state Constitution, Proposition

209 requires those who would seek new race- and sex-conscious preferential

programs to obtain the passage of another statewide initiative. By contrast, those

seeking preferences on all other bases can resort to the usual, less burdensome,

political process.2 These facts, I conclude, require section 31 be invalidated as

unconstitutional under the United States Supreme Court?s decisions in Hunter v.

Erickson (1969) 393 U.S. 385 (Hunter) and Washington v. Seattle School District

No. 1 (1982) 458 U.S. 457 (Seattle).

In Hunter and Seattle, the high court established what has been called the

political structure doctrine, a less familiar variant of equal protection analysis. In

sum, the doctrine (and thus, the Constitution) is violated when a facially neutral

law singles out a racial issue for special treatment and also alters the political

process, entrenching the result and imposing unique structural burdens on

minorities? future ability to obtain beneficial legislation. (Seattle, supra, 458 U.S.

at pp. 470-474, 479-480; Hunter, supra, 393 U.S. at pp. 390-391.) That is, I

submit, precisely what section 31 accomplishes. The arguments offered to the

contrary are thin gruel. (Maj. opn., ante, at pp. 15-20; conc. opn. of Corrigan, J.,

ante, at pp. 2-4.) Whatever the concerns about the ongoing vitality of the political

structure doctrine (conc. opn. of Corrigan, J., ante, at pp. 4-5), unless the United

States Supreme Court decides to overrule its decisions, our obligation is to follow


2

One more fact bears emphasizing: the only race-conscious programs

uniquely affected by section 31 are those that could otherwise withstand strict
scrutiny; that is, those narrowly tailored to further a compelling governmental
interest, such as providing a remedy for purposeful discrimination. Programs
unable to survive such scrutiny were already impermissible without section 31.

2


its clearly applicable and controlling precedent. (Rodriguez de Quizas v.

Shearson/American Express, Inc. (1989) 490 U.S. 477, 484.) Because the

majority fails to do so, I must dissent.3

I.

As the majority relates the facts and history of this case, there is no need to

repeat them. However, the extent of the City and County of San Francisco?s

(City) efforts to investigate whether discrimination was a problem in its public

contracting and, if so, whether there was a basis for a legislative remedy bears

brief mention.

Prior to enacting the 1989 version of the City?s Minority/Women/Local

Business Utilization Ordinance (Ordinance), the City ?received, among other

information, testimony from 42 witnesses, and written submittals from 127

minority, women, local, and other business representatives. Subsequently . . . the

City held an additional ten public hearings, commissioned two statistical studies,

and sought written submissions from the public.? (Associated Gen. Contractors of

Cal. v. Coalition (9th Cir. 1991) 950 F.2d 1401, 1404.)

After the 1989 Ordinance expired, the City?s Board of Supervisors and

Human Rights Commission held an additional 14 public hearings, heard live

testimony from 254 witnesses, videotaped testimony from numerous other

witnesses, and considered additional 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,


3

As discussed below, I generally join the majority?s analysis of the City?s

federal compulsion claim and concur with its decision to remand for further
proceedings. I dissent from the holding as to the City?s federal funding claim.

3


scrutinized their work more closely and treated them more harshly if they made

mistakes. One minority contractor spoke of being harassed and subject to racist

and derogatory remarks from City inspectors. Another complained of being

subjected to more rigorous vetting despite his extensive qualifications and

experience. Out of this process emerged the 1998 Ordinance.

The 1998 Ordinance expired in 2003. The City conducted further

investigations, including a disparity analysis and a Human Rights Commission

report containing additional examples of continuing discrimination in public

contracting. The City also conducted additional hearings at which 134 individuals

testified. Minority contractors testified of ongoing discrimination in the

contracting process, and the Board of Supervisors heard evidence that prime

contractors tried to circumvent compliance with the Ordinance. The Board of

Supervisors made extensive legislative findings, including that the small

percentage of City contracts going to minority- and women-owned businesses was

due to discrimination by the City and discrimination in the private sector, that the

City was actively discriminating against women and minority groups in its

contracting and passively participating in private sector discrimination, that the

City?s contracting practices were in violation of federal law, and that the

Ordinance was required to remedy the discrimination against minority- and

women-owned businesses. The City thereafter enacted the 2003 Ordinance, the

version challenged by plaintiffs in this case.

II.

A. The Political Structure Doctrine

The City contends section 31 violates the political structure doctrine, the

contours of which are set out in a trilogy of United States Supreme Court cases:

Hunter, supra, 393 U.S. 385, and Seattle, supra, 458 U.S. 457, which established

the basic tenets of the doctrine, and Crawford v. Los Angeles Bd. of Education

4


(1982) 458 U.S. 527 (Crawford), which described the doctrine?s outer limits. I

begin by discussing each case in turn.

1. Hunter

In 1964, the city council in Akron, Ohio, enacted a fair housing ordinance

prohibiting discrimination on the basis ?of race, color, religion, ancestry or

national origin.? (Hunter, supra, 393 U.S. at p. 386.) The ordinance established a

commission in the mayor?s office to enforce the measure?s provisions through

conciliation or persuasion if possible, and court order if necessary. (Ibid.) Hunter,

an African-American woman, filed a complaint with the commission alleging a

real estate agent had come to show her a list of houses for sale but, upon meeting

Hunter, said she could not show Hunter the homes ? ?because all of the owners

had specified they did not wish their houses shown to negroes.? ? (Id. at p. 387.)

Hunter was told the ordinance provided no remedy because the city charter

had been amended in a citywide election to provide that any ordinance enacted by

the city council regulating real estate transactions ? ?on the basis of race, color,

religion, national origin or ancestry must first be approved by a majority of the

electors voting on the question at a regular or general election before said

ordinance shall be effective. Any such ordinance in effect at the time of the

adoption of this section shall cease to be effective until approved by the electors as

provided herein.? [Citation.]? (Hunter, supra, 393 U.S. at p. 387.) The proposed

charter amendment had been placed on the ballot after more than 10 percent of

Akron?s voters had signed a petition, and the initiative was passed by a majority of

voters. (Ibid.) Hunter sought a writ of mandamus in state court to enforce the

ordinance, but the trial court ultimately concluded it had been rendered ineffective

by the amended city charter, and the Supreme Court of Ohio affirmed. (Id. at

pp. 387-388.) The high court reversed.

5




While suggesting the mere repeal of an ordinance would not violate the

Fourteenth Amendment (Hunter, supra, 393 U.S. at p. 390, fn. 5), the Supreme

Court noted the charter amendment went further by ?not only suspend[ing] the

operation of the existing ordinance forbidding housing discrimination, but also

requir[ing] the approval of the electors before any future ordinance could take

effect.? (Id. at p. 390, italics added.) In doing so, the charter amendment ?drew a

distinction between those groups who sought the law?s protection against racial,

religious, or ancestral discriminations in the sale and rental of real estate and those

who sought to regulate real property transactions in the pursuit of other ends.?

(Ibid.) Under the amended city charter, it became substantially more difficult for

religious and racial minorities to secure the enactment of ordinances forbidding

housing discrimination than for those seeking other ordinances. (Ibid.)

Ordinances not subject to the charter amendment would become effective

30 days after passage by the city council (or immediately, if passed as an

emergency measure) and would be subject to referendum only if 10 percent of the

voters so requested by signing a petition. (Hunter, supra, 393 U.S. at p. 390.) By

contrast, the city council?s approval would not be enough for those seeking

ordinances to forbid racial and religious housing discrimination. (Ibid.) Those

seeking ordinances to prevent housing discrimination would have to overcome the

unique hurdle of obtaining the approval of a majority of voters in an election

before such a city council-approved ordinance could be effective. (Ibid.)

That the charter amendment was facially neutral was of no moment, the

high court explained. Even though it did not distinguish between various religious

and racial groups, the amended charter ?disadvantages those who would benefit

from laws barring racial, religious, or ancestral discriminations as against those

6


who would bar other discriminations or who would otherwise regulate the real

estate market in their favor.? (Hunter, supra, 393 U.S. at pp. 390-391.)4

Moreover, the Supreme Court recognized that, ?although the law on its face treats

Negro and white, Jew and gentile in identical manner, the reality is that the law?s

impact falls on the minority.? (Id. at p. 391, italics added.) Placing ?special

burdens on racial minorities within the governmental process . . . is no more

permissible than denying them the vote, on an equal basis with others. (Cf.

Gomillion v. Lightfoot (1960) 364 U.S. 339; Reynolds v. Sims (1964) 377 U.S.

533; Avery v. Midland County (1968) 390 U.S. 474.)? (Hunter, at p. 391.) The

high court?s citation to its voting rights decisions (and specifically its vote dilution

decisions) is enlightening, as it underscores that the doctrine?s central focus is not

on the attainment of particular legislative outcomes, but instead on ensuring

minorities? meaningful and equal access to the political process.

Because the charter amendment singled out an issue of particular import to

racial minorities and effectively entrenched the result by imposing unique hurdles

in front of minorities? future efforts to achieve beneficial legislation, the court

concluded it constituted a racial classification and applied strict scrutiny. (Hunter,

supra, 393 U.S. at p. 392.) It ultimately found the asserted justifications for the

amendment insufficient. (Ibid.) Of particular note, the court emphasized that ?the

implementation of this change through popular referendum [does not] immunize

it. [Citation.] The sovereignty of the people is itself subject to those constitutional

limitations which have been duly adopted and remain unrepealed.? (Ibid.) Having


4

The high court pointed out, for example, that the charter amendment did not

affect ?housing discrimination on sexual or political grounds, or against those with
children or dogs, nor [did] it affect tenants seeking more heat or better
maintenance from landlords, nor those seeking rent control, urban renewal, public
housing, or new building codes.? (Hunter, supra, 393 U.S. at p. 391.)

7


chosen a process for enacting legislation, the high court concluded, ?the State may

no more disadvantage any particular group by making it more difficult to enact

legislation in its behalf than it may dilute any person?s vote or give any group a

smaller representation than other of comparable size. [Citations.]? (Id. at p. 393,

italics added.)



2. Seattle

In 1977, Seattle School District No. 1 enacted a resolution to combat de

facto racial segregation in the school system resulting from the housing patterns in

Seattle, Washington. (Seattle, supra, 458 U.S. at p. 459.) The school district

initially employed race-neutral voluntary measures; the steps taken, however,

actually led to increased racial imbalance in the schools. (Id. at p. 461.) The

school district ultimately determined ?that mandatory reassignment of students

was necessary if racial isolation in its schools was to be eliminated? and thus

implemented a program involving the extensive use of busing and mandatory

reassignments in the elementary schools (the Plan). (Ibid.)

After a failed attempt to enjoin the implementation of the Plan, Seattle

residents who opposed its remedial measures drafted a statewide ballot measure

?designed to terminate the use of mandatory busing for purposes of racial

integration.? (Seattle, supra, 458 U.S. at p. 462.) The proposed initiative, which

ultimately passed with 66 percent of the vote, prohibited school boards from

? ?requir[ing] any student to attend a school other than the school which is

geographically nearest or next nearest the student?s place of residence . . . and

which offers the course of study pursued by such student.? ? (Id. at pp. 462-463.)

While the initiative did not mention race or, ?busing for racial purposes,? it

contained a number of exceptions to its ban (id. at p. 463), such that school

districts were permitted to ?bus their students ?for most, if not all,? of the

8


nonintegrative purposes required by their educational policies. [Citation.]? (Id. at

p. 471.) In light of these exceptions, the Supreme Court observed, it was clear that

the measure was aimed solely at eliminating the remedy of ?desegregative busing

in general, and . . . the . . . Plan in particular.? (Id. at p. 463.)5

Three school districts sued the State of Washington in federal court,

arguing the initiative violated the equal protection clause. (Seattle, supra, 458

U.S. at p. 464.) The district court concluded the initiative constituted an

impermissible racial classification in violation of the political structure doctrine

because it forbade busing from being used as a remedy for racial segregation while

permitting its use for all nonracial reasons. (Id. at p. 465.) The Ninth Circuit

affirmed, and the state and state officers appealed. (Id. at p. 466.)

The high court began by noting the equal protection clause guarantees

racial minorities ?the right to full participation in the political life of the

community.? (Seattle, supra, 458 U.S. at p. 467.) To that end, the Fourteenth

Amendment not only protects minorities? right to vote and to enter into the

political process in a reliable and meaningful manner, but also ?reaches ?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.? (Ibid., italics added.) This

?political structure? principle, the high court noted, was expressed and applied in

Hunter and Lee v. Nyquist (W.D.N.Y 1970) 318 F.Supp. 710, summarily affd.


5

Indeed, while the federal district court found that the initiative?s proponents

had not ?address[ed] ?its appeals to the racial biases of the voters? [citation]?
(Seattle, supra, 458 U.S. at p. 463), it found that they had communicated that the
measure?s passage ?would result in ?no loss of school district flexibility other than
in busing for desegregation purposes,? [citation]? and they ?focused almost
exclusively on the wisdom of ?forced busing? for integration. [Citation.]? (Ibid.)

9


(1971) 402 U.S. 935.6 (Seattle, at pp. 467-469.) From these cases (as well as

from Justice Harlan?s concurring opinion in Hunter, supra, 393 U.S. at pages 393-

396), the Seattle court drew ?a simple but central principle? (Seattle, at p. 469):

?[L]aws structuring political institutions or allocating political power

according to ?neutral principles? ? such as the executive veto, or the typically

burdensome requirements for amending state constitutions ? are not subject to

equal protection attack, though they may ?make it more difficult for minorities to

achieve favorable legislation.? ([Hunter, supra,] 393 U.S. at [p.] 394 [(conc. opn.

of Harlan, J.)].) Because such laws make it more difficult for every group in the

community to enact comparable laws, they ?[provide] a just framework within

which the diverse political groups in our society may fairly compete.? (Id. at

p. 393.) Thus, 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.)

Applying the political structure doctrine to the ballot measure, the Supreme

Court concluded that, rather than attempting ? ?to allocate governmental power on

the basis of any general principle? [citation]? (Seattle, supra, 458 U.S. at p. 470), it


6

In Lee v. Nyquist, supra, 318 F. Supp. at page 712, state education officials

directed the City of Buffalo, which had an appointed school board, to implement
remedies to combat de facto segregation. In response, the New York Legislature
enacted a statute barring state officials and appointed (but not elected) school
boards from assigning students to schools on the basis of race, while leaving the
school boards and state officials with student assignment authority for all other
reasons. (Id. at pp. 712, 719.) The three-judge Lee court struck down the statute,
applying the political structure doctrine. (Id. at pp. 718-719.)

10


impermissibly used ?the racial nature of an issue to define the governmental

decisionmaking structure, and thus impose[d] substantial and unique burdens on

racial minorities.? (Ibid.)

In so holding, the court conducted a two-part inquiry. It first inquired

whether the initiative, despite its facial neutrality, singled out a racial issue for

special treatment. (Seattle, supra, 458 U.S. at p. 471.) While the initiative

nowhere mentioned ?race? or ?integration,? the court had little difficulty finding it

was nonetheless ?effectively drawn for racial purposes.? (Ibid.)7 As evidence, the

court pointed to the fact that the exceptions in the initiative meant that only

desegregative busing was prohibited, which was consistent with the proponents?

statements during the campaign. (Ibid.) ?It is beyond reasonable dispute, then,

that the initiative was enacted ? ?because of,? not merely ?in spite of,? its adverse

effects upon? busing for integration. [Citation.]? (Ibid.)

In addition, the court noted that busing for integration is a racial issue that,

?at bottom inures primarily to the benefit of the minority and is designed for that

purpose.? (Seattle, supra, 458 U.S. at pp. 471-472, italics added.) While so

concluding, the court acknowledged that racial minorities, as well as those in the

majority, could be counted among both the proponents and opponents of the ballot

measure, just as both racial minority and majority members benefited from diverse

schools. (Id. at p. 472.) ?But neither of these factors serves to distinguish Hunter,

for we may fairly assume that members of the racial majority both favored and

benefited from Akron?s fair housing ordinance. [Citations.]? (Ibid.) ?[I]t is


7

?Racial purpose? does not refer to the drafters? (or voters?) invidious intent.

(Seattle, supra, 458 U.S. at pp. 484-486.) Rather, a racial purpose may be found
when, among other things, a law is enacted because of, rather than in spite of, its
effect on the racial issue. (Id. at p. 471.)

11


enough that minorities may consider busing for integration to be ?legislation that

is in their interest.? [Citation.] Given the racial focus of [the initiative], this

suffices to trigger application of the Hunter doctrine.? (Id. at p. 474, italics

added.)

For the second part of its inquiry, the high court considered whether ?the

practical effect of [the ballot measure] is to work a reallocation of power of the

kind condemned in Hunter.? (Seattle, supra, 458 U.S. at p. 474, italics added.) In

concluding the initiative did so, the court noted that the ballot measure ?removes

the authority to address a racial problem ? and only a racial problem ? from the

existing decisionmaking body, in such a way as to burden minority interests.?

(Ibid.) After passage of the measure, those seeking to address school segregation

had to seek relief from the state legislature or from the statewide electorate; by

comparison, those wishing to effect any other nonracial school reassignment or

educational policy needed only petition their local school board. (Ibid.) Thus, the

changed political structure ?expressly requires those championing school

integration to surmount a considerably higher hurdle than persons seeking

comparable legislative action. As in Hunter, then, the community?s political

mechanisms are modified to place effective decisionmaking authority over a racial

issue at a different level of government.? (Seattle, at p. 474.)8

In concluding the initiative had worked an impermissibly nonneutral

alteration of the political structure, the court considered, and rejected, arguments

raised by Justice Powell?s dissent and the defendants. Justice Powell argued this


8

Under Washington?s Constitution, voters could propose initiatives (Seattle,

supra, 458 U.S. at p. 462, fn. 4 [citing Wn. Const., art. II, ? 1]) and, if a measure
passed, it could not be repealed by the legislature for two years (although it could
be amended within two years by a vote of two-thirds of each house of the
legislature). (Seattle, supra, at p. 462, fn. 4 [citing Wn. Const., art. II, ? 41].)

12


case was unlike Hunter because ?the political system [of Washington] has not

been redrawn or altered.? (Seattle, supra, 458 U.S. at p. 498 (dis. opn. of Powell,

J.).) The majority dismissed this distinction as facile, pointing out ?[t]he evil

condemned by the Hunter Court was not the particular political obstacle of

mandatory referenda imposed by the Akron charter amendment; it was, rather, the

comparative structural burden placed on the political achievement of minority

interests.? (Id. at p. 474, fn. 17, italics added.)9 In both cases, the power to enact

racial legislation was relocated to a more distant level, the citywide electorate in

Hunter and the statewide electorate or the state legislature in Seattle. (Ibid.)10

The court also rejected the defendants? contention that the ballot measure

merely constituted a permissible intervention by the state in its own school system.

(Seattle, supra, 458 U.S. at pp. 475-476.) While it acknowledged that Washington

had plenary authority over its education system, the court pointed out that ?[t]he

issue here . . . is not whether Washington has the authority to intervene in the

affairs of local school boards; it is, rather, whether the State has exercised that

authority in a manner consistent with the Equal Protection Clause.? (Id. at p. 476.)


9

The majority continued, explaining that Hunter would have been virtually

identical to Seattle had the charter amendment simply precluded the city council
from passing any fair housing ordinance. (Seattle, supra, 458 U.S. at p. 474,
fn. 17.) ?Surely, however, Hunter would not have come out the other way had the
charter amendment made no provision for the passage of fair housing legislation,
instead of subjecting such legislation to ratification by referendum.? (Ibid.)

10

The majority also rejected Justice Powell?s claim that Seattle was different

because proponents of integrated schools remained free to use Washington?s
initiative system to achieve their goals. (Seattle, supra, 458 U.S. at pp. 474,
fn. 17.) The majority pointed out the same was true in Hunter; ?[i]t surely is an
excessively formal exercise, then, to argue that the procedural revisions in Hunter
imposed special burdens on minorities, but that the selective allocation of
decisionmaking authority worked by [the ballot measure] does not erect
comparable political obstacles.? (Ibid.)

13


Having previously chosen to vest decisionmaking authority of the type at issue

here in local school boards (id. at pp. 477-480), the ballot measure ?worked a

major reordering of the State?s educational decisionmaking process. . . . After the

passage of the ballot measure, authority over all but one of those areas remained in

the hands of the local board. By placing power over desegregative busing at the

state level, then, [the initiative] plainly ?differentiates between the treatment of

problems involving racial matters and that afforded other problems in the same

area.? [Citation.]? (Id. at pp. 479-480, italics added.)11

Moreover, the court noted, while voters are free to merely repeal unpopular

legislation at the ballot box, the initiative went further. (Seattle, supra, 458 U.S. at

p. 483.) ?It burdens all future attempts to integrate Washington schools in districts

throughout the State, by lodging decisionmaking authority over the question at a

new and remote level of government.? (Ibid., italics added.) This new political

structure ?imposes direct and undeniable burdens on minority interests. ?If a

governmental institution is to be fair, one group cannot always be expected to

win,? [citation]; by the same token, one group cannot be subjected to a debilitating

and often insurmountable disadvantage.? (Id. at p. 484.)

The high court ultimately concluded strict scrutiny applied to the initiative

because, ?when the political process or the decisionmaking mechanism used to

address racially conscious legislation ? and only such legislation ? is singled


11

The majority also emphasized that, despite the dissent?s assertions to the

contrary, it was not creating a constitutional right either to local decisionmaking or
to desegregative busing. (Seattle, supra, 458 U.S. at p. 480, fn. 23.) Rather, its
decision was predicated upon ?the comparative burden [the ballot measure]
imposes on minority participation in the political process ? that is, the racial
nature of the way in which it structures the process of decisionmaking. . . . [T]he
State remains free to vest all decisionmaking power in state officials, or to remove
authority from local school boards in a race-neutral manner.? (Ibid.)

14


out for peculiar and disadvantageous treatment, the governmental action plainly

?rests on ?distinctions based on race.? ? [Citation.]? (Seattle, supra, 458 U.S. at

p. 485.) It continued, ?when the State?s allocation of power places unusual

burdens on the ability of racial groups to enact legislation specifically designed to

overcome the ?special condition? of prejudice, the governmental action seriously

?[curtails] the operation of those political processes ordinarily relied upon to

protect minorities.? (United States v. Carolene Products Co. (1938) 304 U.S. 144,

153, fn. 4.)? (Seattle, at p. 486.) The court thus concluded the initiative violated

the Fourteenth Amendment and was invalid. (Seattle, at p. 487.)12



3. Crawford

In 1963, minority students attending school in the Los Angeles Unified

School District filed a class action in state court seeking to desegregate the

district?s schools. (Crawford, supra, 458 U.S. at pp. 529-530.) In 1970, the trial

court found substantial segregation in violation of the state and federal

Constitutions and ordered the district to prepare a desegregation plan. (Id. at

p. 530.) Although the court had found de jure segregation in violation of the

Fourteenth Amendment, we affirmed its ruling based solely upon California?s

equal protection clause. (Ibid. [citing Crawford v. Board of Education (1976) 17

Cal.3d 280].) We explained the state Constitution was broader than its federal

counterpart, requiring districts to take reasonable steps to address segregation,


12

It also noted that, ?Certainly, a state requirement that ?desegregation or

antidiscrimination laws,? [citation], and only such laws be passed by a unanimous
vote of the legislature would be constitutionally suspect. It would be equally
questionable for a community to require that laws or ordinances ?designed to
ameliorate race relations or to protect racial minorities,? [citation], be confirmed
by a popular vote of the electorate as a whole, while comparable legislation is
exempted from a similar procedure.? (Seattle, supra, 458 U.S. at pp. 486-487.)

15


? ?whether [it] be de facto or de jure in origin.? ([Crawford v. Board of Education,

supra,] 17 Cal.3d at [p.] 290.)? (Crawford, supra, 458 U.S. at pp. 530-531.)

On remand, the trial court considered possible desegregation plans, first

approving a plan including mandatory busing and then considering alternatives.

(Crawford, supra, 458 U.S. at p. 531.) In the meantime, California?s voters passed

Proposition 1, amending article I, section 7 of the state Constitution. (Crawford,

at pp. 531-532 & fn. 5.) The proposition conformed the power of state courts to

order busing for any reason to federal courts? power under the Fourteenth

Amendment, but did not prohibit schools boards ? ?from voluntarily continuing or

commencing a school integration plan.? ? (Id. at p. 532 & fn. 6, quoting Cal.

Const., art. I, ? 7, as amended Nov. 6, 1979.)

Following Proposition 1?s passage, the school district sought to halt all

mandatory student reassignment and busing, but the trial court denied the request

based on its prior finding of de jure segregation in violation of the federal

Constitution. (Crawford, supra, 458 U.S. at p. 533.) The state Court of Appeal

reversed. It concluded the trial court?s finding of de jure segregation was not

supported, and thus Proposition 1 applied, so it barred the trial court from ordering

mandatory student reassignment and busing. (Id. at pp. 533-534.) The Court of

Appeal also concluded Proposition 1 was constitutional under the Fourteenth

Amendment because California was not obliged to provide a greater remedy

against racial segregation than what was provided under the federal Constitution.

(Crawford, at p. 534.) We denied review, and the high court granted certiorari.

(Ibid.)

The Supreme Court held Proposition 1 did not violate the Fourteenth

Amendment generally, or the political structure doctrine specifically, concluding

the initiative merely repealed this court?s interpretation of California?s

Constitution as imposing broader desegregation obligations than those imposed by

16


the federal Constitution. (Crawford, supra, 458 U.S. at pp. 535-536, 537, fn. 14.)

The high court distinguished Hunter and Seattle in three critical respects: first, it

noted that, under Proposition 1, school districts remained free as before to adopt

reassignment and busing plans based on race to combat segregation (id. at p. 536);

second, it noted Proposition 1 did not single out the issue of desegregative student

assignment and busing, but rather, it removed state courts? power to order

reassignment and busing for any reason, racial or otherwise (id. at p. 538, fn. 18);

and third, it noted Proposition 1 constituted a mere repeal of a right by the same

entity ? the people ? who created it in the first place (via adoption of the state

Constitution) (Crawford, at p. 542; id. at p. 547 (conc. opn. of Blackmun, J.).)13



4. Summary of the Doctrine?s Scope

From these cases, the contours of the political structure doctrine can be

delineated. For a law to violate the doctrine, and thus require application of

heightened scrutiny, two conditions must be met.

First, the law must single out a racial issue for special treatment. (Seattle,

supra, 458 U.S. at pp. 470-474; Hunter, supra, 393 U.S. at pp. 390-391.)14 That a

law is facially neutral is of no consequence (Seattle, at p. 471; Hunter, at pp. 390-

391); rather, we ask whether it was ?effectively drawn for racial purposes.?

(Seattle, at p. 471.) In speaking of a law?s ?purpose,? we do not mean whether it


13

The high court issued its opinions in Seattle and Crawford on the same day.

Notably, four members in the Seattle majority were also in the Crawford majority
(Justices Brennan, White, Blackmun (the author of Seattle), and Stevens).

14

Although the court?s analysis in Hunter and Seattle concerned racial

minorities, nothing suggests the doctrine would not also apply to other suspect
classes, such as women. (Cf. Evans v. Romer (Colo. 1993) 854 P.2d 1270, 1279-
1282 [concluding the principle cannot be logically limited to the race context],
affd. on other grounds sub. nom. Romer v. Evans (1996) 517 U.S. 620.)

17


was motivated by invidious intent. (Id. at pp. 484-486.) A racial purpose exists

where the law was enacted because of, rather than in spite of, its effect upon the

racial issue (id. at p. 471) or where the law?s ?impact falls on the minority?

(Hunter, at p. 391) because the repealed policy ?inures primarily to [minorities?]

benefit . . . and is designed for that purpose.? (Seattle, at pp. 471-472.)

Second, the law must restructure the political process in a nonneutral

manner, imposing unique burdens on minorities? future efforts to enact beneficial

legislation. (Seattle, supra, 458 U.S. at pp. 474, 479-480; Hunter, supra, 393 U.S.

at pp. 390-391.)15 In other words, we ask whether the law effectively entrenches

the result by altering the process such that a ?comparative structural burden [is]

placed on the political achievement of minority interests? (Seattle, at p. 474,

fn. 17) in contrast to the ? ?treatment . . . afforded other problems in the same

area? ? (id. at pp. 479-480).

For a violation of the doctrine to be established, both conditions must be

met; one alone will not suffice. For example, the repeal of a law advantaging

racial minorities certainly singles out a racial issue for special treatment.

However, without more, the mere repeal of such a law by the enacting

governmental entity does not run afoul of the doctrine. (Crawford, 458 U.S. at

p. 547 (conc. opn. of Blackmun, J.); Seattle, supra, 458 U.S. at pp. 483; Hunter,

supra, 393 U.S. at p. 390 & fn. 5.)16 It simply ?reflects the normal operation of


15

As Hunter and Seattle demonstrate, a law can restructure the political

process either explicitly (e.g., the amended charter in Hunter explicitly required
that future housing discrimination ordinances receive voter approval before going
into effect) or implicitly (e.g., the voter initiative taking away school boards?
power to order desegregative busing in Seattle had the practical effect of requiring
another ballot measure or action by the state legislature).

16

Indeed, the high court indicated that, had the voters in Hunter merely

repealed the fair housing ordinance or had the school board in Seattle ended its


(footnote continued on next page)

18


the political process in which there are winners and losers. Repeal of legislation

favorable to the interests of a racial minority simply indicates that a prior winner

has lost . . . [but] does not alter or distort the existing political process in any

way.? (Amar & Caminker, Equal Protection, Unequal Political Burdens, and the

CCRI (1996) 23 Hastings Const. L.Q. 1019, 1044 (Amar and Caminker); Hunter,

at p. 394 (conc. opn. of Harlan, J.).)

As another example, amending California?s Constitution to require that 25

percent of the electorate sign a petition before an initiative can qualify to be placed

on the ballot (as opposed to the current, lower requirement in Cal. Const., art. II,

? 8) would without a doubt ?make it more difficult for minorities to achieve

favorable legislation? via the initiative process. (Hunter, supra, 393 U.S. at

pp. 393-394 (conc. opn. of Harlan, J.).) However, such an alteration would not

violate the doctrine because such a change would be ?grounded in neutral

principle.? (Id. at p. 395; see Seattle, supra, 458 U.S. at p. 480, fn. 23.) Because

such a change to the process would ?make it more difficult for every group in the

community to enact comparable laws,? there would continue to be a level playing

field on which vying political groups could compete. (Id. at p. 470.)

Thus, only when a law singles out a racial issue for special treatment and

alters the political process, imposing a unique structural burden on minorities?

future ability to achieve beneficial legislation, is the political structure doctrine

violated and is the law subject to heightened scrutiny.



(footnote continued from previous page)

race-conscious busing plan without also altering the process for obtaining future
legislation, the doctrine would not have been violated. (Seattle, supra, 458 U.S. at
p. 483; Hunter, supra, 393 U.S. at pp. 389-390 & fn. 5.)

19


B. Proposition 209 and Hi-Voltage

Before explaining why section 31 violates the political structure doctrine, it

is necessary to first briefly revisit Proposition 209, the ballot measure that enacted

section 31, and Hi-Voltage, supra, 24 Cal.4th 537, in which this court construed

section 31?s scope.

1. Proposition 209 and the November 5, 1996, Election

After Proposition 209 qualified as an initiative constitutional amendment, it

was placed on the November 5, 1996, General Election ballot. Prior to the

election, voters received an official ballot pamphlet prepared by the nonpartisan

Legislative Analyst?s Office. (Coalition for Economic Equality v. Wilson (N.D.

Cal. 1996) 946 F.Supp. 1480, 1493 (Coalition I).)17 The ballot pamphlet, which

included an official description and analysis of each statewide initiative, described

Proposition 209 as a measure that would eliminate race- and sex-conscious

affirmative action programs in the areas of public employment, contracting, and

education. (Ibid.) The Legislative Analyst?s brief summary explained ?A YES

vote on [Proposition 209] means: The elimination of those affirmative action

programs for women and minorities run by the state or local governments in the

areas of public employment, contracting, and education that give ?preferential

treatment? on the basis of sex, race, color, ethnicity, or national origin.? ?A NO

vote on [Proposition 209] means: State and local government affirmative action

programs would remain in effect to the extent they are permitted under the United


17

The federal district court preliminarily enjoined enforcement of Proposition

209 (Coalition I, supra, 946 F.Supp. at p. 1510), but the injunction was lifted by
the Ninth Circuit (Coalition for Economic Equality v. Wilson (9th Cir. 1997) 122
F.3d 692, rehg. en banc den. Aug. 27, 1997 (Coalition II)). I cite the district
court?s factual findings, which were also cited by the Ninth Circuit (id. at p. 705)
and this court (Hi-Voltage, supra, 24 Cal.4th at p. 561).

20


States Constitution.? (Ballot Pamp., Gen. Elec. (Nov. 5, 1996), Legis. Analyst?s

brief summary of Prop. 209, p. 6 (Ballot Pamphlet).)

In addition to its summary of the measure, the Legislative Analyst

provided a more in-depth analysis, emphasizing that passage of the initiative

would effectively abolish all race- and sex-conscious affirmative action programs.

?The federal, state, and local governments run many programs intended to

increase opportunities for various groups ? including women and racial and

ethnic minority groups. These programs are commonly called ?affirmative action?

programs. . . . [?] . . . [?] [Proposition 209] would eliminate state and local

government affirmative action programs in the areas of public employment, public

education, and public contracting to the extent these programs involve

?preferential treatment? based on race, sex, color, ethnicity, or national origin.?

(Ballot Pamp., supra, Legis. Analyst?s analysis of Prop. 209, p. 30.) The

Legislative Analyst then discussed various race- and sex-conscious affirmative

action programs in the areas of public employment, contracting, and education that

would be banned with the passage of the initiative. (Id. at p. 31.)

In addition to the nonpartisan analysis by the Legislative Analyst, the Ballot

Pamphlet contained partisan arguments submitted by proponents and opponents of

the measure. These arguments further underscored that the central issue at stake in

Proposition 209 was race- and sex-conscious affirmative action (and race-

conscious measures in particular). The argument in favor of the measure stated,

? ?REVERSE DISCRIMINATION? BASED ON RACE OR GENDER IS PLAIN

WRONG! [?] . . . [S]tudents are being rejected from public universities because

of their RACE. Job applicants are turned away because their RACE does not meet

some ?goal? or ?timetable.? Contracts are awarded to high bidders because they

are of the preferred RACE. [?] . . . [?] . . . Proposition 209 will stop the terrible

programs . . . .? (Ballot Pamp., supra, argument in favor of Prop. 209, p. 32.) The

21


argument against the initiative warned that ?California law currently allows

tutoring, mentoring, outreach, recruitment, and counseling to help ensure equal

opportunity for women and minorities. Proposition 209 will eliminate affirmative

action programs like these that help achieve equal opportunity for women and

minorities in public employment, education, and contracting.? (Id., argument

against Prop. 209, p. 33.)

In explaining that Proposition 209 would eliminate race- and sex-conscious

affirmative action programs, the Legislative Analyst, proponents, and opponents

implicitly acknowledged preferential treatment on all other bases would be

unaffected by the ballot measure. (See Hi-Voltage, supra, 24 Cal.4th at p. 566; id.

at pp. 586-587 (conc. & dis. opn. of George, C.J.).) Indeed, this was explicitly

recognized in the rebuttal to the argument against Proposition 209. ?Affirmative

action programs that don?t discriminate or grant preferential treatment [on the

basis of race or sex] will be UNCHANGED. . . . [?] Note that Proposition 209

doesn?t prohibit consideration of economic disadvantage. . . . The state must

remain free to help the economically disadvantaged, but not on the basis of race or

sex.? (Ballot Pamp., supra, rebuttal to argument against Prop. 209, p. 33.)

On November 5, 1996, Proposition 209 passed, with 54 percent voting in

favor of the measure and 46 percent voting against. (Coalition I, supra, 946

F.Supp. at p. 1495.) White voters were the only racial group that, as a majority,

voted in favor of Proposition 209, with 63 percent voting for passage. (Id. at

p. 1495, fn. 12.) 74 percent of Black voters, 76 percent of Latino voters, and 61

percent of Asian-American voters opposed the measure. (Ibid.) 61 percent of

men voted in favor, while 52 percent of women voted against. (Ibid.)

22


2. Hi-Voltage and Our Construction of Section 31

In 2000, this court considered the validity of a program adopted by the City

of San Jose to encourage the participation of minority-owned business enterprises

and women-owned business enterprises in public work projects. (Hi-Voltage,

supra, 24 Cal.4th at p. 542.) Contractors bidding for city projects were required to

fulfill either an outreach or a participation component, and the plaintiffs argued

that the program?s requirements violated section 31. (Hi-Voltage, at pp. 543-544.)

We agreed, concluding the program?s ?outreach option affords preferential

treatment to [minority-/women-owned business enterprise] subcontractors on the

basis of race or sex, and the participation option discriminates on the same bases

against non-[minority-/women-owned business enterprise] subcontractors as well

as general contractors that fail to fulfill either of the options when submitting their

bids.? (Id. at p. 560.)

In reaching this conclusion, we reviewed the language of section 31 as well

as the ballot materials accompanying Proposition 209. (Hi-Voltage, supra, 24

Cal.4th at pp. 559-562.) We noted the measure?s language was not limited in any

way and effectively prohibited all race- and sex-conscious affirmative action

programs. (Id. at pp. 559-560; id. at pp. 591-592 (conc. & dis. opn. of George,

C.J.).) Turning to the ballot materials, we concluded the partisan statements and

the Legislative Analyst?s analysis provided further support for our construction.

(Id. at pp. 560-562.) In particular, we noted the proponents? statements focused on

race- and sex-conscious affirmative action programs and evinced a clear desire to

ban all such programs. (Id. at pp. 560-561.)

This court ultimately concluded the electorate intended to do ?something

more? than restate existing law prohibiting discrimination on the basis of race or

23


sex. (Hi-Voltage, supra, 24 Cal.4th at p. 561 [citing Coalition I, supra, 946

F.Supp. at p. 1489].)18 That ?something more,? the majority reasoned, was a

repudiation of case law permitting race- and sex-conscious measures ?formulated

to remediate the lingering effects of past discrimination or conspicuous

imbalance? in public contracting, employment, and education. (Hi-Voltage, supra,

at p. 566.) We accordingly held that, following the adoption of section 31, ?any

action that discriminates or grants preferential treatment on the basis of race or sex

would be forbidden,? including race- and sex-conscious measures that would

otherwise be permitted by the equal protection clause. (Hi-Voltage, at pp. 566-

567.)

Thus, the practical effect of section 31?s ban of race- and sex-conscious

measures is limited to just one category of legislation. It has no independent effect

on legislation that cannot survive heightened scrutiny because such legislation

already violates the Constitution. (See Hi-Voltage, supra, 24 Cal.4th at p. 561.) It

also has no effect on legislation required by the Constitution (U.S. Const., art. VI,

cl. 2), when, for example, a public entity seeks to remedy its own past intentional

discrimination (Hi-Voltage, at p. 568). Consequently, section 31?s only

nonredundant effect is on race- and sex-conscious measures that are permitted, but

not required, by the Constitution, i.e., legislation that, despite classifying on the

basis of race or sex, can survive heightened scrutiny. For race-conscious programs

to do so, they must be narrowly tailored and justified by a compelling interest.


18

As the court in Coalition I, supra, 946 F.Supp. at page 1488, explained,

section 31?s ban on discrimination ?simply reaffirms existing anti-discrimination
protections already provided by the United States and California Constitutions,
and by the 1964 Civil Rights Act . . . [and] creates no change in existing law.?

24


(McLaughlin v. Florida (1964) 379 U.S. 184, 191-192.) Under the high court?s

decisions, this category of legislation has become increasingly narrow.

For example, in public contracting, a race-conscious program must be

narrowly tailored to remedy the effects of past discrimination by the public entity

itself or by private sector entities within its jurisdiction. (Richmond v. J. A.

Croson Co. (1989) 488 U.S. 469, 498-506 (Croson).) The Supreme Court has

rejected as insufficiently compelling the remedying of societal discrimination (id.

at p. 505) or the attainment of racial balance in an industry (id. at p. 507).

Similarly, in public employment, remedying the effects of past discrimination by

the public entity is a compelling interest, while remedying societal discrimination

is not. (Wygant v. Jackson Board of Education (1986) 476 U.S. 267, 274 (plur.

opn. of Powell, J.).) In the public education context, in addition to remedying the

effects of past discrimination, the high court has found compelling the promotion

of racial diversity in higher education. (Parents Involved in Community Schools v.

Seattle School District No. 1 (2007) 551 U.S. 701, 720; Grutter v. Bollinger

(2003) 539 U.S. 306, 325.) Thus, the only real change section 31 makes to

existing law is to close an already narrow, albeit significant, window of

constitutionally permissible remedial legislation. (Hi-Voltage, supra, 24 Cal.4th at

p. 568.)

C. Application of the Political Structure Doctrine to Section 31

I now discuss why section 31 violates the political structure doctrine. The

first step of the inquiry requires consideration of whether section 31, while facially

neutral, nonetheless singles out a racial issue for special treatment. (Seattle, supra,

458 U.S. at p. 471.) The answer is plainly yes.

Section 31 prohibits preferential treatment ?on the basis of race, sex, color,

ethnicity, or national origin.? (? 31.) Thus, as with the charter amendment in

25


Hunter, section 31 is explicitly race-conscious. In addition, it singles out a racial

issue for special treatment inasmuch as it draws a distinction between groups

seeking beneficial legislation on the basis of race and sex (i.e., racial minorities

and women) and those seeking beneficial legislation on all other bases (e.g.,

veterans, the economically disadvantaged, in-state residents, local businesses,

physically disabled, athletes, etc.). (Hunter, supra, 393 U.S. at pp. 390-391; see

Ballot Pamp., supra, rebuttal to argument against Prop. 209, p. 33.) For example:

California (along with many other entities) grants civil service preferences to

veterans (see, e.g., Gov. Code, ? 18978); cities and counties may grant contracting

preferences to locally owned or economically disadvantaged businesses (see, e.g.,

S.F. Admin. Code, ch. 6, ? 6.4; id., ch. 14A)19; some public school districts grant

preferences to children of former students (see, e.g., Mehta, Public Schools Offer

Legacy Admissions, L.A. Times (May 16, 2009) p. A3 [discussing school districts?

adoption of admission policy giving preference to out-of-district children of

former students]). Put another way, section 31 does not purport to regulate the

enactment of all preferential legislation in the operation of public employment,

public education, or public contracting, but rather only race- and sex-conscious

preferences in those arenas.

Moreover, there can be no serious doubt that section 31 was ?enacted

? ?because of,? not merely ?in spite of,? its adverse effects upon? ? race- and sex-

based affirmative action, and was therefore ?effectively drawn for racial


19

The manner in which a city contracts is generally a municipal affair.

(Amara v. Cintas No. 2 (2008) 163 Cal.App.4th 1157, 1175.) However, the Public
Contract Code requires cities and counties to use the lowest responsible bidder on
public works projects (Pub. Contract Code, ?? 20160, 20162 [cities]; id.,
?? 20120, 20128 [counties]) with certain enumerated exceptions (see, e.g., id.,
? 2002 [local agencies can give small business preference].)

26


purposes.? (Seattle, supra, 458 U.S. at p. 471.) Indeed, the ballot summary and

the partisan statements underscore that the measure?s central purpose was to

effectively eliminate all race- and sex-based affirmative action. (E.g., Ballot

Pamp., supra, Legis. Analyst?s brief summary of Prop. 209, p. 6; id., argument in

favor of Prop. 209, p. 32.) We arrived at the same conclusion in Hi-Voltage. (Hi-

Voltage, supra, 24 Cal.4th at pp. 566-567; id. at pp. 591-592 (conc. & dis. opn. of

George, C.J.).)

Finally, affirmative action is a racial issue in the same way that the fair

housing ordinance in Hunter and the desegregative busing in Seattle were racial

issues. (Seattle, supra, 458 U.S. at pp. 471-472; Hunter, supra, 393 U.S. at

p. 391.) That is, ?although [section 31] on its face treats [Whites and racial

minorities, men and women] in identical manner, the reality is that the law?s

impact falls on the minority.? (Hunter, at p. 391.) Affirmative action ?inures

primarily to the benefit of the minority and is designed for that purpose.? (Seattle,

at pp. 471-472.) And while racial minorities and women could undoubtedly be

counted among both Proposition 209?s opponents and supporters, that does not

serve to distinguish Hunter or Seattle. (Seattle, at p. 474.) For our purposes, ?it is

enough that [racial minorities and women] may consider [race- and sex-conscious

affirmative action] to be ?legislation that is in their interest.? [Citation.]? (Ibid.)20

In summary, based on section 31?s language, its different treatment of race- and

sex-conscious legislation as compared to other legislation in the same area, its

avowed purpose, and whom it primarily affects, I conclude section 31 without


20

Indeed, as previously noted, the substantial majority of Blacks (74 percent),

Latinos (76 percent), and Asian-Americans (61 percent), and a majority of women
(52 percent), voted against Proposition 209. (Ante, at p. 22.)

27


question singles out a racial issue for special treatment, triggering application of

the political structure doctrine. (See Seattle, at p. 474.)21

The second step of the inquiry requires consideration of whether section 31

constitutes a nonneutral restructuring of the political process, placing higher

hurdles in front of those seeking race- and sex-conscious measures as opposed to

what those seeking beneficial legislation on all other bases face. (Seattle, supra,

458 U.S. at p. 474 & fn. 17.) As in Hunter and Seattle, the most obvious way to

answer this question is to examine the impact of Proposition 209?s passage on the

process for obtaining favorable legislation. Because the practical effect of section

31 is the erection of a steep hurdle in front of those seeking race- and sex-

conscious preferential legislation (as compared with those seeking similar

legislation on other bases), section 31 obviously ?work[s] a reallocation of power

of the kind condemned [by the high court].? (Seattle, at p. 474.)

Prior to Proposition 209, any person seeking beneficial legislation for any

group in the areas of public contracting, employment, or education could petition

their government representatives to adopt, amend, or retain such a program.

(Coalition I, supra, 946 F.Supp. at p. 1498.) For example, in matters of public


21

The majority does not dispute that section 31 singles out a racial issue for

special treatment. While the concurring opinion does so (conc. opn. of Corrigan,
J., ante, at p. 3), its rationale lacks a reasoned basis. It relies on the fact that
section 31 targets not only race, but gender as well, thus ?broaden[ing] the
application of the measure.? (Conc. opn. of Corrigan, J., ante, at p. 3.) Of course,
the charter amendment in Hunter applied not only to race, but to religion as well;
this fact did not prevent the charter amendment?s invalidation. (Hunter, supra,
393 U.S. at p. 387.) Moreover, as noted by Judge Norris in his dissent from the
Ninth Circuit?s decision to deny en banc rehearing of the panel decision in
Coalition II, combining various suspect classes into one undifferentiated group for
purposes of equal protection analysis is without basis in case law or common
sense. (Coalition II, supra, 122 F.3d at p. 716 (opn. of Norris, J. on den. rehg.).)

28


contracting, Public Contract Code section 2000 gave local agencies the discretion,

subject to certain limitations, to give bidding preferences to contractors who had

complied with affirmative action requirements. (See Monterey Mechanical Co. v.

Sacramento Regional County Sanitation Dist. (1996) 44 Cal.App.4th 1391, 1400-

1403; Domar Electric, Inc. v. City of Los Angeles (1995) 41 Cal.App.4th 810, 820-

822.) With the passage of Proposition 209, the decision to permit and create such

programs has been withdrawn from the Legislature and from local agencies, and

now the adoption of affirmative action programs can only be accomplished via

amendment of the state Constitution. Thus, the political mechanisms for seeking

race- and sex-conscious legislation have been ?modified to place effective

decisionmaking authority over [such legislation] at a different level of

government.? (Seattle, supra, 458 U.S. at p. 474.) On the other hand, the City

may continue to grant contracting preferences on other bases (see, e.g., S.F.

Admin. Code, ch. 6, ? 6.4; id., ch. 14A), and those seeking preferential legislation

not involving race or sex continue to have the opportunity to lobby local

governmental entities and the Legislature for the expansion of such preferences or

the creation of new ones.

That section 31?s placement in the state Constitution erects a new and

formidable barrier to those advocating for race- and sex-conscious affirmative

action programs can hardly be doubted. Amending California?s Constitution can

be accomplished via either of two methods, both of which impose heavy burdens.

First, the state Constitution can be amended via passage of another initiative. (Cal.

Const., art. II, ? 8.) To qualify a ballot measure, sponsors would initially have to

obtain signatures equal to 8 percent of the previous gubernatorial vote. (Ibid.) To

put that in context, to qualify an initiative constitutional amendment for the 2010

ballot, sponsors would have had to collect 694,354 valid signatures. (Cal. Sect. of

State, Initiative Guide (2010), at <http://www.sos.ca.gov/elections/ballot-

29


measures/how-to-qualify-an-initiative.htm > [as of Aug. 2, 2010].) Because a

number of signatures tend to be disqualified, approximately 50 percent more

?raw? signatures than the threshold amount must be collected (Coalition I, supra,

946 F.Supp. at p. 1498), and they must be obtained within a 150-day period (Elec.

Code, ? 336).22 If enough valid signatures are gathered, the initiative is placed on

the ballot at the next statewide election and must obtain the approval of a majority

of voters. (Cal. Const., art. II, ? 8.)

As a second method, the Legislature can amend the state Constitution by

securing a two-thirds vote of approval of a proposed amendment by both houses.

(Cal. Const., art. XVIII, ? 1.) If the Legislature does so, the measure is placed on

the ballot and must garner a majority of votes. (Id., ? 4.)

If sponsors are able to successfully navigate getting the proposed

amendment on the ballot via either process, substantial funds will then be required

to run a statewide campaign. (Coalition I, supra, 946 F.Supp. at p. 1499.)

Because of the size of California, such campaigns tend to be very expensive ? as

of October 1996, for example, the campaign in support of Proposition 209 had

spent $3.1 million. (Ibid.) As a more recent example, in the November 2008

election, $75 million was spent in support of and against Proposition 8, the

initiative to ban same-sex marriage. (McKinley & Goodstein, Bans in 3 States on

Gay Marriage, N.Y. Times (Nov. 6, 2008) p. A20.)23


22

To collect 150 percent of the threshold number, a measure?s sponsors

would have to collect 1,041,531 signatures. Given a 150-day window,
approximately 7,000 signatures would have to be collected on average per day.

23

Even in the case of a comparatively less controversial November 2008

ballot measure, like Proposition 2 (Standards for Confining Farm Animals), the
statewide campaigns in favor and against the initiative spent over $19 million.
(Cal. Sect. of State, Cal-Access Web site, Campaign Finance Activity, <http://cal-


(footnote continued on next page)

30




In light of the substantial hurdles that racial minorities and women (and

only those individuals) must overcome in seeking remedial legislation, section

31?s ban on constitutionally permissible race- and sex-conscious measures

impermissibly reallocates power.24 It ?removes the authority to address [race- and

sex-conscious beneficial legislation] ? and only [such legislation] ? from the

existing decisionmaking body, in such a way as to burden minority interests.?

(Seattle, supra, 458 U.S. at p. 474.) In the wake of Proposition 209, veterans, the

economically disadvantaged, the physically disabled, children of alumni, in-state

residents, etc., all may continue to seek, obtain, and benefit from preferential

legislation as before.25 That is, they can approach and lobby their school board,

city council, county government, state university, state legislator, or any other

public entity to enact legislation or adopt policies. The same is no longer true for

those seeking race- and sex-conscious legislation, even when the legislation is

narrowly tailored to remedy the effects of past discrimination by a public entity.



(footnote continued from previous page)

access.ss.ca.gov/Campaign/Measures/Detail.aspx?id=1301652> [as of Aug. 2,
2010].)

24

That racial minorities and women can also seek beneficial legislation on all

other bases (e.g., a local, minority-owned business can seek preferences available
to all locally owned businesses) does not alter this conclusion ? the same was
true in Hunter and Seattle.

25

The concurring opinion places great weight on the fact section 31 applies to

public employment and education and contracting, arguing that the broad scope of
section 31 distinguishes it from the laws at issue in Hunter and Seattle. (Conc.
opn. of Corrigan, J., ante, at pp. 3-4.) I disagree. As Judge Norris noted, ?Neither
Hunter nor Seattle ? nor common sense, for that matter, supports the proposition
that expanding the levels at which the State disadvantages minorities will render
that action any less constitutionally suspect.? (Coalition II, supra, 122 F.3d at
p. 715 (opn. of Norris, J. on den. rehg.).)

31


Thus, the practical effect of section 31 is to restructure the political process in a

nonneutral fashion. (Seattle, at pp. 479-480.)26

Although I conclude that section 31?s ban of race- and sex-conscious

affirmative action violates the political structure doctrine, this does not mean that,

once adopted, affirmative action measures may never be abolished. As the

Supreme Court has repeatedly explained, the doctrine is not violated when

enacting governmental entities merely overturn previous policies or when voters

simply repeal unpopular legislation at the ballot box. (Seattle, supra, 458 U.S. at

p. 483; Hunter, supra, 393 U.S. at p. 390, fn. 5.)27 Section 31, however, works

more than a mere repeal of beneficial legislation by the enacting entity. (Seattle,

at p. 483.) It burdens all future attempts to obtain race- and sex-conscious

remedies by relocating decisionmaking power over such legislation from the

public entities that had previously wielded it to a remote level of government, the

state Constitution. (Seattle, at p. 483.)28


26

Neither the majority nor the concurrence disputes that section 31 puts

unique hurdles in front of those who would seek the future enactment of race- and
sex-conscious preferential legislation as opposed to those who seek preferential
legislation on all other bases.

27

For example, Governor Pete Wilson issued an executive order on June 1,

1995, repealing race- and gender-conscious employment practices under his
immediate control. (Governor?s Exec. Order No. W-124-95 (June 1, 1995).)
Similarly, on July 20, 1995, the Regents of the University of California acted of
their own accord to discontinue the use of race and gender preferences in
contracting, employment, and admissions decisions. (Regents of U.C., res. No.
SP-1 [admissions]; id., res No. SP-2 [contracting and employment].) While both
of these pre-Proposition 209 decisions resulted in the elimination of race- and sex-
conscious preferences, they simply reflected the operation of the normal political
process.

28

For example, while the Regents subsequently decided to rescind resolution

Nos. SP-1 and SP-2 (Policy on Future Admissions, Employment, and Contracting


(footnote continued on next page)

32




Significantly, section 31?s most profound impact is felt in communities

where affirmative action does not arouse substantial opposition. (Seattle, supra,

458 U.S. at p. 483; Hunter, supra, 393 U.S. at pp. 395-396 (conc. opn. of Harlan,

J.).) Where a public entity?s decision to enact affirmative action would be

unpopular, voters could have simply overturned the policy via referendum or

election of new representatives ? in such instances, section 31?s impact is slight.

Where affirmative action is relatively uncontroversial, however, section 31?s

alteration of the process for enacting future legislation ?imposes direct and

undeniable burdens on minority interests. ?If a governmental institution is to be

fair, one group cannot always be expected to win,? [citation]; by the same token,

one group cannot be subjected to a debilitating and often insurmountable

advantage.? (Seattle, at p. 484.)29

The majority does not contest that section 31 was enacted because of its

effect on race- and sex-conscious affirmative action or that, as a result, section

31?s impact falls primarily on minorities. Nor does it dispute that section 31

works more than a mere repeal, but rather imposes significant burdens on future

efforts to enact race- and sex-conscious preferential legislation. These facts, I

submit, establish a clear violation of the political structure doctrine and require,

under controlling United States Supreme Court precedent, invalidation of section

31. The majority concludes otherwise. Its main ? indeed its only ? argument is

that the doctrine does not apply when race- and sex-conscious preferential



(footnote continued from previous page)

(May 16, 2001)), the policy reversal is essentially without effect in light of section
31.

29

In San Francisco, for example, 70.5 percent of the electorate opposed

Proposition 209. (Coalition I, supra, 946 F.Supp. at p. 1507.)

33


legislation is at issue. (Maj. opn., ante, at pp. 16-20.)30 As this distinction finds

no support in Hunter or Seattle, however attractive the majority?s holding might

be to some as a matter of policy, it is incorrect as a matter of law. In reaching its

conclusion, the majority misreads and misapplies the high court?s political

structure doctrine cases, imposing requirements and finding exceptions that do not

appear in, and are not supported by, Hunter or Seattle.

The majority contends the legislation invalidated in Hunter and Seattle is

distinguishable from section 31 in that the former ?obstruct[ed] equal treatment?

while the latter ?ban[s] preferences.? (Maj. opn., ante, at p. 17.) In response to

the City?s argument that race-conscious preferences are as much ?beneficial

legislation? ? the phrase used by the Seattle court ? as the antidiscrimination

ordinance in Hunter or the race-conscious busing policy in Seattle, the majority

declares: ?We do not think, however, that the term ?beneficial legislation? can

bear the weight the City would place upon it.? (Maj. opn., ante, at p. 17.)31 The

majority?s rejoinder is curious; it is difficult to see how race-conscious preferential

30

The majority relies on decisions of the Ninth and Sixth Circuit Courts of

Appeals (Coalition to Defend Affirmative Action v. Granholm (6th Cir. 2006) 473
F.3d 237; Coalition II, supra, 122 F.3d 692). (Maj. opn., ante, at pp. 13, 16-17,
19.) As the majority acknowledges (id. at p. 16), however, while decisions of
lower federal courts on questions of federal law are persuasive, they do not bind
us; rather, we make an independent determination of federal law. (Barrett v.
Rosenthal
(2006) 40 Cal.4th 33, 58; see, e.g., Steffel v. Thompson (1974) 415 U.S.
452, 482, fn. 3 (conc. opn. of Rehnquist, J.).)

31

To the extent the majority opinion can be read to imply the Supreme Court

could not have anticipated the phrase ?beneficial legislation? might be read to
include race-conscious affirmative action (maj. opn., ante, at pp. 17-19), I
disagree. Executive orders promulgated by Presidents Kennedy (Exec. Order No.
10925, 26 Fed.Reg. 1977 (Mar. 8, 1961) and Johnson (Exec. Order No. 11246, 30
Fed.Reg. 12319 (Sept. 28, 1965)) required the use of affirmative action to combat
discrimination. At a minimum, by the time Seattle was decided in 1982, the
notion of race- and sex-conscious affirmative action was very well understood.

34


legislation does not constitute ?beneficial legislation? (Seattle, supra, 458 U.S. at

p. 467) or ?legislation that is in [minorities?] interest? (Hunter, supra, 393 U.S. at

p. 395 (conc. opn. of Harlan, J.)). It is more reasonable to assume the high court

understood that ?beneficial legislation? is an expansive phrase and used it

intending it be so construed. The majority points to nothing in either Hunter or

Seattle to suggest the Supreme Court intended the cramped reading the majority

now adopts. To the contrary, there is substantial evidence in those opinions

supporting the notion that the high court did intend for its language to be read

broadly.

For example, the high court discussed minorities? ability ?to enact

legislation in [their] behalf? (Hunter, supra, 393 U.S. at p. 393); ?the ability of

minority groups to achieve beneficial legislation? (Seattle, supra, 458 U.S. at

p. 467); minorities? ability ? ?to achieve favorable legislation? ? (id. at p. 469,

citing Hunter, at p. 394 (conc. opn. of Harlan, J.)); the ability ?to achieve

legislation that is in [minorities?] interest? (Hunter, at p. 395 (conc. opn. of Harlan,

J.)); the ?burden [on] minority interests? (Seattle, at pp. 474, 484); the ?political

achievement of minority interests? (id. at p. 474, fn. 17); and ?the ability of racial

groups to enact legislation specifically designed to overcome the ?special

condition? of prejudice? (id. at p. 486). That the Supreme Court repeatedly spoke

in expansive terms bolsters the City?s argument ? the political structure doctrine

is concerned not with minorities? actual legislative goals, but with their equal and

meaningful access to the political process. (See ante, at p. 7.)32 The majority?s


32

The majority goes astray by wrongly focusing on the difference between

race-conscious preferences on the one hand and the Hunter housing ordinance and
the Seattle busing policy on the other hand. (Maj. opn., ante, at pp. 17-19.) The
focus should instead be on the erected legislative hurdles: section 31, the Hunter
charter amendment, and the Seattle statewide initiative. All three similarly


(footnote continued on next page)

35


reliance on the preferential nature of the legislation is therefore an inapt basis for

distinguishing Hunter and Seattle.

Moreover, the majority?s efforts to distinguish ?between initiatives

obstructing equal treatment and initiatives banning preferences? (maj. opn., ante,

at p. 17) elides the fact that section 31?s only practical effect is on the narrow

group of laws that can survive heightened constitutional scrutiny. (Ante, at p. 24.)

Given that reality, the distinction between the race-conscious affirmative action

here and the antidiscrimination law in Hunter, supra, 393 U.S. at page 386, is

illusory.33 Before adopting race-conscious preferential legislation, a public entity

must document in some detail the existence of discrimination to provide ?a ?strong

basis in evidence that remedial action [is] necessary.? [Citation.]? (Croson, supra,

488 U.S. at p. 500.) Thus, the 2003 Ordinance at issue here is in a very direct way

an antidiscrimination program, in which any preference granted must be strongly

justified by the tangible continuing effects of the City?s own past discrimination.

To withdraw from public entities the ability to engage in this kind of racial

antidiscrimination program, and to withdraw from minorities the capacity to

advocate for such local antidiscrimination legislation in the future, while at the

same time permitting local entities to grant preferences for other groups (without



(footnote continued from previous page)

burdened minorities? equal and meaningful access to the political process,
undermining their ability to achieve favorable legislation in a nonneutral fashion.

33

The difference between constitutionally permissible affirmative action and

the race-conscious busing addressing de facto segregation in Seattle is even less
clear. Moreover, as regarding the political structure doctrine, the Supreme Court
necessarily rejected any distinction between the antidiscrimination law in Hunter
and the race-based remedial efforts in Seattle.

36


having to make a similar showing of discrimination), is precisely the kind of

selective political restructuring that Hunter and Seattle sought to forbid.

As an additional rationale for distinguishing section 31, the majority cites

two related arguments made by the Ninth Circuit. The first argument is that the

Constitution does not require race-conscious measures ?it barely permits.?

(Coalition II, supra, 122 F.3d at p. 709; see maj. opn., ante, at p. 13.) This, of

course, is a red herring. No one contends the Constitution requires race- or sex-

conscious affirmative action. Nor is that relevant to the inquiry, as neither the

adoption of the housing ordinance in Hunter nor the busing policy in Seattle was

constitutionally required. Rather, the focus of the political structure doctrine is on

nonneutral structural obstacles to constitutionally permitted, not required,

legislation in minorities? interest. ?What the Court did hold is that states may not

place political obstacles in the way of laws that favor minorities, nor may they

remove such laws wholesale from the political process. All that is constitutionally

required is that minorities have the opportunity, on equal terms, to seek

?legislation in [their] behalf? within existing channels of government. [Citation.]?

(Coalition II, at p. 715 (opn. of Norris, J. on den. rehg.).)

Second, the majority suggests that section 31 cannot violate the

Constitution, as it is consistent with the ? ?core purpose? of the equal protection

clause.? (Maj. opn., ante, at p. 19.) The Ninth Circuit put it more lyrically: ? ?[I]t

would be paradoxical to conclude that by adopting the Equal Protection Clause of

the Fourteenth Amendment, the voters of the State thereby had violated it.?

(Crawford, [supra,] 458 U.S. at [p.] 535.)? (Coalition II, supra, at p. 709.) This is

a canard. Section 31 is not coextensive with the equal protection clause. While it

is true that the Constitution permits race- and sex-conscious measures only if they

can survive heightened scrutiny, section 31 goes further. As the Attorney General

puts it, ?[section 31] closes a door to race- and gender-conscious programs that the

37


Fourteenth Amendment leaves open.? And it does so while simultaneously

leaving others free to seek preferential legislation on all other bases. This unique

burden on the ability of women and racial minorities to achieve beneficial

legislation in their interest is what violates the political structure doctrine, and thus

the Constitution. (Hunter, supra, 393 U.S. at pp. 390-391.)34

Finally, while the majority disclaims the argument (maj. opn., ante, at

p. 19, fn. 10), it bears noting that Coalition II questioned the vitality of the

political structure doctrine in light of recent decisions by the high court.

(Coalition II, supra, 122 F.3d at pp. 704, 705, fn. 13; see also conc. opn. of

Corrigan, J., ante, at pp. 4-5.)35 I do not perceive the same irreconcilability and

am not convinced the Supreme Court?s more recent conventional equal protection

decisions undermine Hunter and Seattle. (See Amar & Caminker, supra, 23

Hastings Const. L.Q. at pp. 1035-1039.) Whereas more recent Supreme Court

cases have restricted the type of affirmative action remedies permitted under the

Constitution, they do not undermine the principle that minorities may not be

prevented, via nonneutral political restructuring, from seeking beneficial

legislation ? including constitutionally permissible affirmative action remedies.

Moreover, as noted before, our task is to faithfully apply the Supreme

Court?s precedent, not to prognosticate what it might do if presented with the


34

As one commentator aptly put it, ?[i]f the Equal Protection Clause does not

prohibit the race and gender preferences barred by Proposition 209, compliance
with the Equal Protection Clause cannot constitute a justification for Proposition
209?s discriminatory invalidation of race and gender preferences.? (Spann,
Proposition 209 (1997) 47 Duke L.J. 187, 255.)

35

Of course, while the majority states it does not question the doctrine?s

?continuing validity? (maj. opn., ante, at p. 19, fn. 10), it nonetheless uses
?historical context? (ibid.) to justify a cramped reading of the doctrine. (See ante,
at pp. 33-34.)

38


opportunity to reconsider the doctrine. ?If a precedent of [the high court] has

direct application in a case, yet appears to rest on reasons rejected in some other

line of decisions, the [lower court] should follow the case which directly controls,

leaving to [the high court] the prerogative of overruling its own decisions.?

(Rodriguez de Quijas v. Shearson/American Express, Inc., supra, 490 U.S. at

p. 484.)36

Thus, applying the Supreme Court?s decisions in Hunter and Seattle, I

conclude section 31?s ban on constitutionally permissible race- and gender-

conscious remedial measures violates the political structure doctrine, and I would

remand the case for consideration of whether section 31 can withstand heightened

scrutiny. In so concluding, I fully acknowledge the controversial nature of race-

and sex-conscious measures (even when undertaken to remedy past

discrimination) and the considerable passions on both sides of the issue. However,

as Judge Henderson wisely commented in Coalition I, supra, 946 F. Supp. at page

1490, ?this case does not call upon this Court to adjudicate whether affirmative

action is right or wrong, or whether it is no longer appropriate policy for


36

In Romer v. Evans, supra, 517 U.S. 620, the high court invalidated a state

initiative prohibiting public entities from taking actions to protect gays and
lesbians. The state supreme court concluded the measure was subject to strict
scrutiny, relying on the political structure doctrine. (Id. at pp. 625-626.) The
Supreme Court affirmed the judgment, but based its decision on a conventional
equal protection analysis. (Id. at pp. 633-634.) In dissent, Justice Scalia suggested
the majority ?implicitly reject[ed]? the state supreme court?s political structure
doctrine holding. (Id. at p. 640, fn. 1 (dis. opn. of Scalia, J.).) I respectfully
disagree. To the contrary, Justice Kennedy?s majority opinion is fully consistent
with the underpinnings of the political structure doctrine. (See id. at p. 633.)
Moreover, contrary to the concurrence?s suggestion (conc. opn. of Corrigan, J.,
ante, at p. 5, fn. 3), the applicability of the doctrine in Romer was not so plain.
Rather, the invalidated initiative in Romer explicitly targeted and burdened gays
and lesbians. Thus, a conventional equal protection analysis was called for.

39


addressing the continuing effects of past and present discrimination against racial

minorities and women. Such questions, while they are most certainly of vital

public policy interest, lie beyond the purview of this Court. . . . [?] Rather, the

substantive issues raised by this action are considerably more narrow, albeit no

less important: whether the particular method chosen by Proposition 209 to curtail

affirmative action is unlawful because it . . . violates the rights of women and

minorities to fully participate in our political system . . . .? As I conclude the

answer is yes, I dissent from the majority?s contrary view.

III.

The City argues it can demonstrate triable issues exist regarding whether it

was constitutionally obliged to enact the 2003 Ordinance, given ample evidence of

pervasive intentional discrimination in the awarding of public contracts; that is,

that the Ordinance may be the only, or at least the most likely, means of

remedying purposeful racial discrimination. As the majority explains, the trial

court failed to meaningfully address this argument and remanding for a hearing

would be helpful to reviewing courts. (Maj. opn., ante, at pp. 24-26.) I fully

concur.

I also fully agree with the majority that the Board of Supervisor?s

legislative findings ?do not bind the court on remand? and that, where racial

classifications are at issue, ? ?simple legislative assurances of good intention

cannot suffice? [Croson, supra, 488 U.S. at p. 500].? (Maj. opn., ante, at p. 28,

fn. 20.) When, however, as in the present case, remedial measures rest not on such

?simple legislative assurances,? but on detailed factual findings, respect for

constitutional separation of powers requires they be given considerable weight.

(Connecticut Indemnity Co. v. Superior Court (2000) 23 Cal.4th 807, 814.)

To recap, before adopting the 1989 version of the Ordinance, the City

considered the testimony of 42 witnesses and the written submissions from 127

40


minority, women, local, and other business representatives. The City subsequently

held another 10 public hearings, commissioned two statistical studies, and sought

additional written submissions from the public.

When the 1989 Ordinance expired and the City was considering adopting a

new version, it held an additional 14 public hearings, considered the live testimony

of 254 witnesses, videotaped testimony of numerous other witnesses, additional

statistical disparity studies, and other documentary evidence pertinent to alleged

discrimination and bidding irregularities. The City also heard direct evidence

concerning racial discrimination by City employees.

When the 1998 Ordinance expired and the City was considering adopting

the version of the Ordinance challenged here, it conducted additional public

hearings at which 134 individuals testified. It heard additional direct evidence of

ongoing discrimination in the contracting process and also heard evidence that

prime contractors tried to circumvent compliance with the Ordinance. An

additional disparity analysis was conducted, and the City?s Human Rights

Commission wrote a report containing additional examples of discrimination in

the process. Only after these efforts were completed did the Board of Supervisors

make extensive legislative findings, including that the paucity of City contracts

going to minority- and women-owned businesses was due to discrimination by the

City and discrimination in the private sector, that the City was actively

discriminating against women and minority groups in its contracting and passively

participating in private sector discrimination, that the City?s contracting practices

were in violation of federal law, and that the Ordinance was required to remedy

the discrimination against minority- and women-owned businesses.

As Justice Kennedy noted in Croson, ?evidence which would support a

judicial finding of intentional discrimination may suffice also to justify remedial

legislative action, for it diminishes the constitutional responsibilities of the

41


political branches to say they must wait to act until ordered to do so by a court.?

(Croson, supra, 488 U.S. at p. 519, italics added (conc. opn. of Kennedy, J.).)

Questions such as whether ?a race- and gender-conscious remedy is . . . the most

likely means of rectifying? injury from past discrimination (maj. opn., ante, at

p. 28) require an assessment of complex historical and socioeconomic data, and a

government entity?s answer to such questions, if methodologically sound and

supported by substantial evidence, should not be lightly overturned by a reviewing

court.

IV.

The City also argues the Ordinance is required to maintain the eligibility for

funding it receives from various federal agencies, including the United States

Department of Transportation. If the City is correct, the Ordinance is

unquestionably exempt from section 31.37 The majority rejects the City?s

argument and affirms the granting of plaintiffs? summary judgment motion. (Maj.

opn., ante, at pp. 20-24.) I disagree and would remand for further proceedings.

As the majority explains (maj. opn., ante, at p. 22), title VI of the Civil

Rights Act of 1964 (42 U.S.C. ? 2000d) provides that ?[n]o 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.? Title VI also

authorizes federal agencies that provide funding to issue regulations implementing

its requirements. (42 U.S.C. ? 2000d-1.) To that end, the Department of

Transportation issued a regulation providing that, ?Where prior discriminatory


37

Section 31, subdivision (e) exempts actions ?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.?

42


practice or usage tends, on the grounds of race . . . to exclude individuals from

participation in, to deny them the benefits of, or to subject them to discrimination

under any program or activity . . . , the applicant or recipient must take affirmative

action 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

. . . 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 . . . .? (49 C.F.R. ? 21.5 (b)(7) (2009), italics added.) The regulation further

makes clear that race-conscious measures do not constitute prohibited

discrimination ?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 . . . .? (Ibid.)

The majority concludes that the Department of Transportation regulation

permits, but does not require, funding recipients to use race-conscious measures to

remedy past discrimination, as ?affirmative action,? as that term is meant in the

regulation, encompasses both race-conscious and race-neutral measures. (Maj.

opn., ante, at pp. 23-24.) Thus, the majority reasons, a recipient can remain

eligible for federal funding and comply with section 31 by using race-neutral

affirmative action to address racial discrimination. (Id. at p. 24.) I fully agree in

most instances.

The majority, however, fails to grapple with what happens if race-neutral

affirmative action is incapable of remedying the discrimination. For example, we

have recognized that, ?Where the state or 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, italics added.) Indeed, the

majority has concluded the City should have the opportunity to show whether

43


triable issues of fact exist as to whether the Constitution requires adoption of the

Ordinance because, among other things, ?a race- and gender-conscious remedy is

necessary as the only, or at least the most likely, means of rectifying the

[discrimination.]? (Maj. opn., ante, at pp. 24, 27-28.)38 If the City is successful in

so demonstrating, it would be incongruous to conclude that the Constitution

requires a race-conscious remedy (because, in part, of the inadequacy of race-

neutral measures) but that the Department of Transportation?s regulations do

not.39

Thus, in light of our decision to remand the matter for further consideration

of the federal compulsion issue, I would also remand this claim so the superior

court can consider if the City can show triable issues of fact exist as to whether it

is required to take race-conscious affirmative action to maintain its funding

eligibility because race-neutral measures are inadequate.


38

The majority states that its resolution of this claim would be unaffected

were the City to demonstrate the existence of purposeful discrimination on
remand. (Maj. opn., ante, at p. 21, fn. 14.) It reasons that, if the Ordinance is
required by the equal protection clause, the City?s federal funding claim ?has no
practical significance.? (Ibid.) Even assuming the majority is correct on this
point, if the Ordinance is only permitted, and not required, under the equal
protection clause, the City should have the opportunity to demonstrate race-neutral
measures will not suffice to comply with its obligations under federal regulations.

39

Funding recipients cannot be reasonably be required to employ ineffective

race-neutral measures, nor, indeed, would it appear that the use of fruitless
measures would satisfy entities? obligations under title VI and agencies?
implementing regulations.

44




V.

Accordingly, I dissent from parts II.A and II.B of the majority?s opinion. I

concur with part II.C of the majority?s opinion and with its decision to remand the

matter for further proceedings.

MORENO, J.

45




See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Coral Construction, Inc. v. City and County of San Francisco
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted
XXX 149 Cal.App.4th 1218
Rehearing Granted
__________________________________________________________________________________

Opinion No.
S152934
Date Filed: August 2, 2010
__________________________________________________________________________________

Court:
Superior
County: San Francisco
Judge: James L. Warren
__________________________________________________________________________________

Attorneys for Appellant:

Dennis J. Herrera, City Attorney, Wayne K. Snodgrass, Danny Chou, Sherri Sokeland Kaiser and James M.
Emery, Deputy City Attorneys; Moscone, Emblidge & Quadra, G. Scott Emblidge, Rachel J. Sater, Robert
D. Sanford, Michael P. Brown; Meyers, Nave, Riback, Silver & Wilson, Mara E. Rosales, Joseph M. Quinn
and K. Scott Dickey for Defendants and Appellants.

Lewis, Feinberg, Lee, Renaker & Jackson, Bill Lann Lee, Vincent Cheng and Lindsay Nako for Council of
Asian American Business Associations, Association of Asian American Attorney and CPA Firms, Chinese
for Affirmative Action, Asian American Justice Center, Asian Law Caucus and Asian American Bar
Association of the Greater Bay Area as Amici Curiae on behalf of Defendants and Appellants.

Nancy Ramirez, Nicholas Espiritu; Sonnenschein Nath & Rosenthal, Christopher E. Prince, Shirin
Soleman, Demian L. Pay and Manuel Alvarez, Jr., for Mexican American Legal Defense and Educational
Fund as Amicus Curiae on behalf of Defendants and Appellants.

Bingham McCutchen, Michael Isaku Begert, Karen Lu, Rianne E. Nolan, Renee M. DuPree, Nancy M.
Wang, Elizabeth M. Hall; Sujal J. Shah; Lawyers? Committee for Civil Rights and Oren Sellstom for
Coalition for Economic Equity as Amicus Curiae on behalf of Defendants and Appellants.

Frank C. Newman International Human Rights Clinic and Constance de la Vega as Amici Curiae on behalf
of Defendants and Appellants.
__________________________________________________________________________________

Attorneys for Respondent:

Pacific Legal Foundation, John H. Findley, Sharon L. Browne, Alan W. Foutz and Paul J. Beard II for
Plaintiffs and Respondents.

Gordon M. Fauth, Jr., and Michael J. Meyer for Asian American Legal Foundation as Amicus Curiae on
behalf of Plaintiffs and Respondents.

Law Office of Anthony T. Caso and Anthony T. Caso for American Civil Rights Institute as Amicus Curiae
on behalf of Plaintiffs and Respondents.








Counsel who argued in Supreme Court (not intended for publication with opinion):

Sherri Sokeland Kaiser
Deputy City Attorney
City Hall, Room 234
1 Dr. Carlton B. Goodlett Place
San Francisco, CA 94102-4682
(415) 554-4691

Sharon L. Browne
Pacific Legal Foundation
3900 Lennane Drive, Suite 200
Sacramento, CA 95834
(916) 419-7111