SAN FRANCISCO — In one of the most important California civil rights cases in years, a state Supreme Court majority indicated Wednesday that the voter-approved ban on affirmative action abolished race- and gender-based preferences in government contracts.
The high court was hearing arguments in a challenge to a San Jose ordinance that required government contractors to solicit bids from companies owned by women and minorities.
Although a decision is not expected for three months, four of the seven Supreme Court justices spoke out against the ordinance, saying it appears to be prohibited by Proposition 209, which passed in 1996.
“In plain language, the provision prohibits any preference,” Justice Joyce L. Kennard said.
Attorney General Bill Lockyer, who personally argued in defense of the San Jose ordinance, said the case could gut scores of so-called outreach programs run by local governments statewide.
Proposition 209, approved by 54 percent of voters, prohibited preferences for women and minorities in state and local contracting, employment and education.
It did not define “preferences,” but its sponsors focused their campaign attacks on quotas, set-asides and other measures that gave groups advantages in selection.
San Jose officials argued that the city’s practices were not covered under Proposition 209.
The ordinance requires city construction contractors, on contracts over $50,000, to contact at least four firms owned by women or minorities, negotiate with them and accept their bids or state legitimate reasons for rejection.
The measure was challenged by Hi-Voltage Works, a Rancho Cordova company that submitted a low bid of $197,000 on a circuit-switcher for a San Jose sewage treatment plant in 1997.
It was rejected because the company did not reach out to minority or female contractors to help with the project.
The city, which found minorities underrepresented in subcontracting in a 1990 study, says it is merely giving previously excluded groups a chance to compete equally.
Hundreds of state and local programs to inform, recruit, train or tutor women and minorities use the same rationale, San Jose attorney Joan R. Gallo argued.
“The federal Constitution demands that we just can’t sit by discrimination and say, ‘oh well,”’ Gallo said.
Chief Justice Ronald M. George suggested that governments could affirmatively reach out to all contractors so long as they did not base it on race or gender.
Justice Janice R. Brown agreed: “It is permissible to set up an outreach program that encompasses the entire universe of people so long as it doesn’t target one race or one sex.”
And Justice Kathryn Mickle Werdegar said that in the description of Proposition 209 in the ballot guide, “The legislative analyst said it would eliminate affirmative action programs.”
In his first appearance before the high court, Lockyer pleaded to the justices to uphold the ordinance.
He likened San Jose’s program to a race “where we make every reasonable attempt to get people to the starting gate.”
The U.S. Justice Department, Lockyer and nine cities and counties filed briefs in support of San Jose’s measure, while a host of groups, including the American Civil Rights Institute, Pacific Legal Foundation and former Gov. Pete Wilson filed opposition papers.