Regarding a San Francisco program that gives preferences to minority- and women-owned firms bidding for city contracts, and requires contractors to meet the “goal” of hiring a fixed percentage of minority or women subcontractors, a Superior Court judge found the city violated California’s Proposition 209. An appellate court found that perhaps the city could justify its program if it could establish past discrimination. And now the California Supreme Court has agreed to decide whether preferential treatment violates a constitutional ban on preferential treatment.
ADDENDUM
Justice Maria Rivera, a member of the appellate court panel whose decision will now be reviewed by the Supreme Court,
vigorously argued that Proposition 209 violates the federal constitutional rights of women and minorities to equal treatment in the political process.
There is “no doubt,” she wrote, that Proposition 209 “was engendered not by opposition to all preferences, but by opposition to preferential treatment for racial minorities and women.”
Presumably Justice Rivera thinks that both the Fourteenth Amendment and the 1964 Civil Rights Act are both unconstitutional because there is “no doubt” that both were “engendered” by a desire to prevent discrimination against blacks.
You’ve got to admit, it’s a pretty cynically clever ploy: create a discriminatory policy that benefits “racial minorities and women.” Then claim that repealing the policy would be discriminatory, because doing so only hurts racial minorities and women.
We could call it the “Cobra Gambit,” in honor of a prolific commentator here.
Having read Rivera’s opinion, she correctly relies on the worst excesses of the Brennan-Marshall court — Hunter v. Erickson and the completely nonsensical and embarassingly badly reasoned (Blackmun — need I say more?) Washington v. Seattle School District.
If one wants to engage in results-oriented jurisprudence, one can rely upon Seattle School District for what is essentially the proposition that the Equal Protection Clause forbids equal protection. And Rivera does do exactly that.