Injustice is colorblind:  Update on Prop 209

The scales of justice are leaning towards the "Darwinian" or "Spencerian" notion that only the fittest shall survive.  Proposition 209, on its surface, seemed fair.  It   prohibited anyone being given the edge in getting a job or getting into school because of their gender or ethnicity.  However, many  people in the human relations community opposed the proposition because they were afraid it would; prevent women from preparing for, or getting,  jobs or contracts that were traditionally held by men and prevent people of color from preparing for, or getting, jobs or contracts that they were traditionally excluded from by segregated unions, or discriminatory business practices.  Many supporters of Proposition 209 supported the notion that people should be judged on their qualifications and experience,  but they were not aware the Proposition would also affect programs that were seeking to make sure that there was a level playing field allowing for fair competition. 

Just how far the courts are willing to go in stopping efforts to help women and people of all ethnicities compete fairly for jobs and contracts remains to be seen, but some indication was given by the United States Court of Appeal decision in Monterey Mechanical Co. vs. [Governor] Wilson in September.  The Court found that a state law requiring businesses seeking state public works contracts to make a good faith effort to notify minority and women-owned firms of the opportunity to participate as subcontractors was unconstitutional.  The Court said that even requiring a good faith effort to ensure word of the available contract opportunities got out to firms owned by women or minorities violates the "equal protection clause" of the fourteenth amendment unless there is specific proof of discrimination.  The court did not argue that minorities or women would get preference, only that they would receive different treatment since there would be a special effort to make them aware of the opportunities.  The court now has gone beyond ensuring there is no granting of preference in contracting that was prohibited by Proposition 209 to ensuring there are no special efforts to make sure groups that were traditionally excluded are even aware of the opportunity to contract with the State.  The logic of the court can be extended for example, to programs seeking to attract young women into science and engineering, or people of color into teaching or law.

The court rationale in the Monterey Mechanical case that there needs to be a showing of discrimination before special efforts can be made to reach out to inform particular groups of people about contracting opportunities might sound fair but it falls short in light of Proposition 209, since the proposition did not provide for exceptions where there is proof of prior discrimination.  The only exception would be if the court imposed a requirement for special efforts as part of the settlement of a class action complaint.

A number of technicalities may result in the overturning of the Court of Appeals decision, for example,  Governor Wilson, who was being sued, assisted the side that was suing him and turned down an authorization for the completion of a study to determine whether discrimination exists.  But, regardless of the ultimate outcome of this particular case, the Court of Appeals decision illustrates that even efforts to help people compete equally with those who have had a traditional advantage are going to be challenged.

Responding to the Supreme Court refusal to re-impose an injunction on the enforcement of Proposition 209 in early September, Governor Wilson asked the State Legislature to remove language in all legislation that provides for efforts to reach out to women or people based on their race or ethnicity to ensure they were informed of, or considered for, opportunities for jobs, contracts, or education.  As California faces the 21^st century with an increasingly diverse population, intergroup competition and conflict will become part of the social landscape unless all groups see the need to cooperate.  A colorblind society that does not recognize the special needs of its diverse peoples is bound to suffer from internal divisions.  California must struggle to devise acceptable processes for assuring its communities of people that they have an opportunity to participate fully and fairly in society.