Judge Halts San Francisco Affirmative Action Contracting Program; City to Appeal Decision
Feature Story by civilrights.org staff - 8/5/2004
San Francisco city officials are vowing to appeal a court ruling issued last week that struck down the city's ordinance mandating affirmative action in city contracts.Judge James Warren of the San Francisco Superior Court ruled the city's ordinance violated Proposition 209 by unconstitutionally granting preferences to minority- and women-owned businesses.
"The ruling is very distressing and does violate the spirit of inclusion the city has always pursued," said City Supervisor Tom Ammiano.
Following the ruling, a spokesperson for City Attorney Dennis Herrera confirmed that the city had instructed public officials to refrain from enforcing the affirmative action ordinance. However, Herrera's office plans to appeal the decision – a move supported by San Francisco Mayor Gavin Newsom. Also, both Newsom and Ammiano are looking into introducing legislation that would help disadvantaged businesses in contracting.
"San Francisco is committed to ensuring full and equitable opportunities for minority- and women-owned business enterprises," Newsom said.
In the meantime, officials are still determining the impact on continuing negotiations for city contracts, given that agencies receiving federal funds are subject to federal requirements mandating that they assist disadvantaged businesses, including those owned by women and minorities.
The city's 20-year old program granting women and minorities a portion of city contracts has undergone many modifications over the years. A city ordinance currently requires that minority- and women-owned businesses receive a 10 percent discount on bids when competing for public contracts. The law also calls upon contractors to hire – or demonstrate serious efforts to hire – women and minority subcontractors to handle a certain share of the work.
The court challenge was brought by the Pacific Legal Foundation, a conservative, Sacramento-based, public interest group that has brought numerous cases to challenge affirmative action programs nationwide.
Judge Warren based his decision upon a 2000 ruling by the California Supreme Court, which found a similar program in San Jose to be in violation of Proposition 209. While the city argued that both Prop. 209 and the San Jose decision provide exceptions for programs designed to remedy past intentional discrimination, the court disagreed.
San Francisco is one of the few remaining California cities that continue to enforce affirmative action in public contracting since the passage of Proposition 209 in 1996.
