Tribute to Prince Hall Masonry (Andrew Young, Dr. John W. Davis, Others), 1976 - 11 of 13

    No. S080318

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

CITY OF SAN JOSE, et al.,
Appellants 

v .
HI-VOLTAGE WIRE WORKS, INC., et al.,

Respondents

APPEAL FROM THE SIXTH APPELLATE 
DISTRICT COURT OF APPEAL

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

STUART J. ISHIMARU
Deputy Assistant Attorney General

MARK L. GROSS 
LISA W. EDWARDS 
Attorneys
Department of Justice 
Civil Rights Division 
P.O. Box. 66078 
Washington, D.C. 20035-6078 (202) 514-5695



TABLE OF CONTENTS

PAGE
STATEMENT OF THE ISSUE PRESENTED ........................ 1
INTEREST OF THE UNITED STATES ............................ 1
STATEMENT OF THE C A S E ..................................... 2

A. Background.................................... 2
B. The City P r o g r a m ..............................  4

1. Documentation of Outreach ................. 5
2. Documentation of Participation ............. 5

C. Proceedings Below ..............................  6
STANDARD OF R E V I E W ........................................ 10
INTRODUCTION AND SUMMARY OF THE ARGUMENT ................ 10
ARGUMENT:

THE STATE COURT OF APPEALS' INTERPRETATION OF THE 
CONSTITUTIONALITY OF THE CITY PROGRAM MAY, IN SOME 
CIRCUMSTANCES, CONFLICT WITH FEDERAL LAW ............ 11
A. The United States Constitution Requires That

Municipalities Fully Remedy Documented Discrimination And Its E f f e c t s .................. 11
B. The Court Of Appeals' Interpretation Of

Article I, Section 31 Of The State 
Constitution Limits The City's Ability To 
Remedy The Effects Of Its Past Discrimination
In Conflict With Federal Statutory L a w ........... 17

C. Subsection (h) Of Article I, Section 31 
Establishes That Proposition 209 Recedes
When Federal Law Requires Race-Based Action . . .  24

CONCLUSION..............................................2 5
CERTIFICATE OF SERVICE

l



TABLE OF AUTHORITIES

CASES: PAGE
Adarand Constructors._Inc, v. Pena. 515 U.S. 200 (1995) . . 16
Alexander v. Estepp, 95 F.3d 312 (4th Cir. 1996),

cert, denied, 520 U.S. 1165 (1997)...................  16
Billish v. City of Chicago. 962 F.2d 1269 (7th Cir.

1992), rev'd, 989 F.2d 890 (7th Cir. 1993).......... 17
Boston Police Superior Officers Fed'n v. City of Boston.147 F. 3d 13 (1st Cir. 1998)   17
City of Richmond v. J.A. Croson Co.. 488 U.S.

469 (1989)........................................passim
Coalition for Econ, Equity v. Wilson. 122 F.3d 692

(9th Cir.), cert, denied, 522 U.S. 963 (1997) . . passim
Columbus Bd. of Educ. v. Penipk, 443 U.S.

449 (1979)..........................................  12
Detroit Police Officers' Ass'n v. Young. 608 F.2d 671

(6th Cir. 1979), cert, denied, 452 U.S. 938 (1981) . . 23
Edwards v. City of Houston. 37 F.3d 1097 (5th Cir.

1994), rev'd in part on other grounds,
78 F. 3d 983 (5th Cir. 1996) ........................ 21

Florida Lime & Avocado Growers._Inc, v. Paul.373 U.S. 132 (1963)   15
Fullilove v. Klutznick. 448 U.S. 448 (1980).......... 23, 24
gftcje v - National Solid Wastes Management Ass'n.505 U.S. 88 (1992)..................................  14
Ghirardo v. Antonioli. 8 Cal. 4th 791, 883 P.2d 960,

35 Cal. Rptr. 2d 418 (1994) ........................  10
Hazelwood Sch. Dist. v. United States. 433 U.S.

299 (1977)..........................................  15
Hi-Voltage Wire.._Wgrks,_Inc . v. City of San Jose.84 Cal. Rptr. 2d 885 (Ct. App. 1999)............passim
Hines v. Davidowitz. 312 U.S. 52 (1941).................. 18

li



CASES (continued): PAGE
International Bhd, of Teamsters v. United States.431 U.S. 324 (1977) ............................ 15, 16
Johnson v. Transportation Agency, 480 U.S.

616 (1987)...................................... 19, 20
Local No. 93 v. City of Cleveland. 478 U.S.

501 (1986)...................................... 20-21
McDonnell Douglas Corp, v. Green. 411 U.S. 792 (1973) . . .  19
Milliken v. Bradley, 418 U.S. 717 (1974)   12
Missouri v. Jenkins. 515 U.S. 70 (1995)..................  12
Missouri v. Jenkins. 495 U.S. 33 (1990)..................  13
North Carolina State Bd. of Educ. v. Swann. 402 U.S.43 (1971) .......................................... 12
Officers for Justice v. Civil Serv. Comm'n. 979 F.2d 

721 (9th Cir. 1992), cert, denied, 507 U.S.
1004 (1993)   21

Palmore v. Sidoti . 466 U.S. 429 (1984) ..................  13
Regents of the Univ. of Cal, v. Bakke. 438 U.S.

265 (1978)..........................................  23
Taxman v. Board of Educ.. 91 F.3d 1547 (3d Cir. 1996), 

cert, granted, 521 U.S. 1117, and cert, dismissed,522 U.S. 1010 (1997)...............................  20
United States v. Paradise. 480 U.S. 149 (1987) . . . .  16, 17
United Steelworkers of Am. v. Weber. 443 U.S.

193 (1979)...................................... 19, 20
Walker V. City of Mesquite. 169 F.3d 973

(5th Cir. 1999) ..................................  16
williams v. Babbitt. 115 F.3d 657 (9th Cir. 1997),

cert, denied, 523 U.S. 1117 (1998)..................  16
Wygant v. Jackson Bd. of Educ.. 476 U.S. 267 (1986) . . 13, 15

- iii -



CONSTITUTIONS AND STATUTES: PAGE

U .S. Const.:
Art. VI, Cl. 2 (Supremacy Clause) ..................14Amend. X I V ............................................ 23

§ 1 (Equal Protection Clause) ....................  11

Cal. Const.:
Art. I:

§ 31 (Proposition 209)   passim
§ 31(e)   4
§ 31(h)     passim

Civil Rights Act of 1964,
Title VI, 42 U.S.C. 2000d seq. ................. passim
Title VII, 42 U.S.C. 2000e e£ seq.....................passim

42 U.S.C. 200Oe-2( a).................................. 18
42 U.S.C. 2 0 0 Oe - 2 (j ) ........................18, 22, 23
42 U.S.C. 2000e-2(k)   1842 U.S.C. 2000e-5(g) (1)  18
42 U.S.C. 2 0 0 0 e - 7 .................................... 22

Education Amendments of 1972,
Title IX, 20 U.S.C. 1681 et s e a . ......................  2

REGULATIONS:
Exec. Order No. 11,246, 3 C.F.R. 167 (1965 Supp. ) ........  2
Exec. Order No. 11,375, 3 C.F.R. 320 (1967 Comp.) ........  2

LEGISLATIVE HISTORY:
110 Cong. Rec. (1964) :

p. 6544   23
P- 7062   23

MISCELLANEOUS:
3 BPA Economics £t al.. MBE/WBE Disparity Study for

the City of San Jose (1990) ........................  3

IV



No. S080318

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

CITY OF SAN JOSE, et al.,
Appellants 

v .
HI-VOLTAGE WIRE WORKS, INC., et al.,

Respondents

APPEAL FROM THE SIXTH APPELLATE 
DISTRICT COURT OF APPEAL

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

STATEMENT OF THE ISSUE PRESENTED 
Whether the state court of appeals erred in interpreting 

Article I, Section 31 of the Constitution of the State of 
California, in such a manner effectively to prohibit a 
municipality from meeting its obligation to cure a violation 
of federal law.

INTEREST OF THE UNITED STATES 
This case concerns a state constitutional challenge to a 

contracting program adopted by the City of San Jose to ensure 
that minority- and women-owned firms are not discriminated 
against in the award of subcontracts on municipal public works 
projects. The City created the program after finding that 
there was a statistically significant disparity between the 
number of subcontracts awarded by prime contractors to 
minority-owned firms and those awarded to non-minority-owned



2
firms, and anecdotal evidence of discrimination against 
minority- and women-owned firms on public works projects. The 
state court of appeals held that Article I, Section 31 of the 
state constitution (Proposition 209) prohibited the use of 
race- or gender-conscious measures under any circumstance, 
even to remedy the demonstrable effects of past 
discrimination.

The United States enforces the United States Constitution 
and federal statutes that prohibit state and local governments 
from engaging in racial discrimination. These legal 
provisions also require such entities fully to remedy the 
effects of discrimination.-' The United States has an interest 
in this case because the lower court's ruling limits a 
municipality's ability to remedy its past discrimination 
which, in some instances, will conflict with federal 
obligations.

STATEMENT OF THE CASE
A . Background
This case involves the City of San Jose's efforts to

The United States enforces numerous federal statues that 
prohibit discrimination in various contexts, including Title 
VI (42 U.S.C. 2000d et seq.) (prohibits discrimination on the 
basis of race, color, or national origin by recipients of 
federal funds), Title VII (42 U.S.C. 2000e et seq.) (prohibits 
discrimination in employment on the basis of race, color, 
religion, sex, or national origin), and Title IX (20 U.S.C. 
1681 et. seq. ) (prohibits discrimination on the basis of sex by 
educational institutions receiving federal funds). The United 
States also enforces Executive Order 11,246, which prohibits 
discriminatory employment practices by prime- and sub­
contractors on federal contracts. See Exec. Order No. 11,246, 
3 C.F.R. 167 (1965 Supp.), as amended, Exec. Order No. 11,375, 
3 C.F.R. 320 (1967 Comp.). These statutes and the Executive 
Order authorize district courts to pr> wide equitable relief 
where discrimination is proven or admitted.



3
ensure that its contracting practices do not discriminate 
against minority- and women-owned business enterprises ("MBEs” 
and “WBEs”) . Hi-Voltaoe Wire Works. Inc, v. City of San Jose. 
84 Cal. Rptr. 2d 885 (Ct. App. 1999). In 1983, the City 
established a program to encourage participation by MBEs and 
WBEs in public works projects. Id. at 887-888. This program 
relied on the use of participation goals based on MBE and WBE 
availability. After the Supreme Court decided City of 
Richmond v. J .A . Croson Co.. 488 U.S. 469 (1989), the City 
suspended the program and commissioned a study to determine 
whether there was a significant disparity in the number and 
dollar value of contracts and subcontracts that were awarded 
to MBEs and WBEs, as compared to those awarded to other firms. 
84 Cal. Rptr. 2d at 888. The City's Disparity Study, released 
in 1990, found that there was a statistically significant 
disparity between the “dollar value" of subcontracts awarded to 
minority-owned firms and those awarded to nonminority-owned 
firms, and that “disparities in the number and dollar value of 
MBE prime contracts continue[d] to be statistically 
significant." See 3 BPA Economics et al.. MBE/WBE Disparity 
Study for the City of San Jose (Vol. Ill) III-21 to III-22 
(1990) . The Study also found that the market share of public 
contracts for women-owned firms was “too small to allow 
meaningful statistical tests for [this] categor[y]" but that 
the “low market share itself might be attributable to 
discriminaotry [sic] practices.” Id. at III-21.



4
In response to the 1990 Study, the City adopted the 

"MBE/WBE Construction Program" to encourage prime contractors 
to engage in nondiscriminatory subcontracting with minority- 
and women-owned firms. 84 Cal. Rptr. 2d at 888. The program 
included the use of goals and required prime contractors to 
document steps taken to meet the goals. Ibid.

In 1996, Proposition 209 amended the State of 
California's Constitution. The language of Proposition 209 is 
set out as Article I, Section 31 of the state constitution, 
and reads:

[t]he state shall not discriminate against, or grant 
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.

Subsection (e) of Section 31 states that the provision should 
not be interpreted to prohibit “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.” Subsection (h) states that if any parts of the 
Section 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."

B . The City Program
After Proposition 209 became law, the City adopted a new 

program applicable to construction contracts in excess of 
$50,000. The new program was adopted through Resolution No.



5
67002. After the Hi-Voltage lawsuit was filed, the program 
was modified by Resolution No. 67005. Resolution No. 67005 
(the "City Program”) is at issue in this litigation. See 84 
Cal. Rptr. 2d at 888.

The City Program prohibits discrimination by prime 
contractors. When contractors submit bids for City-funded 
public works projects, they must show that they have not 
discriminated against MBE or WBE subcontractors. Under the 
City Program, contractors do this by documenting either 
outreach efforts or actual participation by MBEs and WBEs.
See 84 Cal. Rptr. 2d at 889.

1. Documentation of Outreach. Contractors can satisfy 
this option by maintaining written records showing that they 
engaged in the following in preparing their bid:

(a) sent solicitation letters to four MBE and/or WBE
firms for each trade area on the project, and then
(b) contacted each of these firms to assess theirinterest, and then
(c) negotiated with these firms in good faith.

Under this option, contracting bidders are prohibited from 
“unjustifiably” rejecting a bid from a prospective MBE or WBE. 
See 84 Cal. Rptr. 2d at 889.

2. Documentation of Participation. Under this option 
the City determines the percentage of MBE or WBE firms that 
would be expected to participate in the project based on the 
number of potential subcontracting opportunities and the 
number of available MBE and WBE firms. The contractor can



6
then list a sufficient number of MBE or WBE participants in 
the bid; the number of MBEs or WBEs listed should be that 
amount that the City determines would be expected to 
participate on the project in the absence of discrimination. 
Meeting the standards set out in this option creates the 
presumption that the prime contractor has not discriminated 
against MBE and WBE subcontractors. See 84 Cal. Rptr. 2d at 
889 .

If a prime contractor submitting a bid cannot fulfill the 
terms of either option, the City considers the bid 
nonresponsive and rejects it. See 84 Cal. Rptr. 2d at 889.

C. Proceedings Below
1. In 1997, Hi-Voltage, a general contracting firm, had 

been the low bidder on a circuit switcher upgrade project for 
a water pollution control plant. Because Hi-Voltage intended 
to use its own workforce for the entire project, it failed to 
satisfy either subcontracting option set out in the City 
Program. The City thus rejected the bid as nonresponsive to 
the subcontracting program. Plaintiffs Allen Jones, a city 
taxpayer, and Hi-Voltage challenged the City Program as a 
violation of Article I, Section 31 of the California 
Constitution. See 84 Cal. Rptr. 2d at 889.

Plaintiffs alleged that the City Program required 
contractors to give “unlawful preferences" to minority- and 
women-owned firms on subcontracts. Plaintiffs sought 
declaratory and injunctive relief to prevent the City from



7
continuing the program. Both parties moved for summary- 
judgment. The superior court held that both components of the 
program constituted classifications based on race and sex in 
violation of Article I, Section 31, and enjoined the City 
Program. See 84 Cal. Rptr. 2d at 889-890.

2. The state court of appeals affirmed. The court of 
appeals recognized that the purpose of the City Program is to 
"eradicate and prevent discrimination in public projects," and 
that the City's method of achieving this objective is to 
"require each bidding contractor to take concrete steps to 
prove he or she is not discriminating against minority or 
women subcontractors.” 84 Cal. Rptr. 2d at 890. The court 
also recognized that by invalidating this kind of program, 
public entities may not have an “effective means of assuring 
[MBEs and WBEs] equal bidding opportunity in public works 
projects, and it thus may indirectly promote discrimination by 
prime contractors." Ibid.

The court, nonetheless, held that in seeking to remedy 
discrimination, the City of San Jose ran afoul of “the 
constitutional proscription of article I, section 31 [Prop.
209] ." 84 Cal. Rptr. 2d at 891. “In effect, the adoption of
article I, section 31, places governments seeking to eradicate 
discrimination in a no-win situation.” Ibid. The court 
stated that to "determine the lawfulness of the [City]
Program, [it] must determine whether the language of article 
I, section 31, accommodates the methods used by the City to



8
accomplish its goal of eradicating private discrimination in 
public projects.” Ibid.

The City argued that federal law permits race-conscious 
affirmative action under limited conditions, and that in fact 
the City Program is “race-neutral" affirmative action and 
permissible under Article I, Section 31. 84 Cal. Rptr. 2d at
894. Disagreeing, the court observed that the Program is not 
race-neutral, and that Article I, Section 31 “does not permit 
discrimination whenever federal standards are met." Ibid.
The court stated that the state constitutional provision 
affords "'greater protection to members of the gender and 
races otherwise burdened by the preference.1" Ibid. (quoting 
Coalition for Econ. Equity v. Wilson. 122 F.3d 692, 709 n.18
(9th Cir.), cert, denied, 522 U.S. 963 (1997)).

Analyzing the validity of the City Program under the 
state constitutional provision, the court held that the first 
option is not race neutral. 84 Cal. Rptr. 2d at 895. The 
court observed that the outreach option violates the state 
constitution because it requires notification to four MBEs 
and/or WBEs, personal contact with these firms, that prime 
contractors negotiate with these firms, and that prime 
contractors may not “unjustifiably” reject bids from MBEs or 
WBEs. The court found that these requirements (even the last 
requirement alone) “grant [] a distinct preference" to women and 
minorities in violation of the state constitution. Ibid.

The court also found the second option, which requires



9
documenting MBE/WBE participation, in violation of the state 
constitution because prime contractors have a “strong economic 
motive to list MBE/WBEs in the bid or to document efforts to 
obtain their participation," or risk having their bid 
rejected. 84 Cal. Rptr. 2d at 896. The court also stated 
that whether option two is labeled a “screening device" or a 
goal, it cannot serve as a viable alternative to option one 
because it “involves the kind of discrimination and 
preferential treatment” Proposition 209 prohibits. id. at 
897 .

The City tried to validate the plan as being “narrowly 
tailored to serve a compelling governmental interest.” 84 
Cal. Rptr. 2d at 897. The court of appeals rejected this as 
the appropriate standard for evaluating the City Program. The 
court stated that Article I, Section 31 of the state 
constitution requires only a determination whether the program 
"discriminate[s] against or grant[s] preferential treatment to 
individuals based on their race [or] sex.” Ibid. The court 
stated that the state constitutional provision “does not offer 
a loophole for discrimination based on the government's 
objectives, even when those objectives are themselves 
consistent with the provision," and that “it is the conduct, 
not the underlying intent, that determines whether 
governmental activity complies with this [state] 
constitutional mandate.” Id. at 897.

Finally, the court rejected the City's argument that the



10
program was required by Title VI of the Civil Rights Act of 
1964, 42 U.S.C. 2000d et seq. The court held that the City 
failed to demonstrate a conflict between Title VI and Article 
I, Section 31, because Title VI does not require recipients of 
funding to implement remedial affirmative action programs that 
result in discrimination or preferential treatment. 84 Cal. 
Rptr. 2d at 898.

STANDARD OF REVIEW
The state court of appeals' interpretation of the 

validity of the City Program under Article I, Section 31 of 
the state constitution, is a pure question of law subject to 
this Court's independent or de novo review. Ghirardo v. 
Antonioli, 8 Cal. 4th 791, 799, 883 P.2d 960, 965, 35 Cal. 
Rptr. 2d 418, 423 (1994).

INTRODUCTION AND SUMMARY OF THE ARGUMENT
Where a state or local government has been found by a 

federal court to have discriminated in violation of federal 
law, it must fully remedy that violation. Similarly, where a 
state or local government itself finds that it has engaged in 
discriminatory action, or has passively perpetuated 
discrimination of private actors, these governmental entities 
may have a similar obligation under the United States 
Constitution and federal statutes to remedy that violation.

Despite the City's findings, the state court of appeals 
ruled that Article I, Section 31 of the state constitution 
absolutely prohibits the City from using race- or gender-based



11
criteria to remedy the effects of discrimination. This aspect 
of the court of appeals' ruling is erroneous. The lower 
court's enforcement of Article I, Section 31 of the state 
constitution, as prohibiting any use of race- or gender-based 
criteria regardless of the circumstance, may conflict with 
federal obligations of municipalities or the State to cure the 
effects of discriminatory action. Because federal law 
requires, in some circumstances, that race- and/or gender­
conscious criteria be used to provide an effective remedy to a 
constitutional or statutory violation, in those circumstances 
Article I, Section 31 of the state constitution must yield to 
the City's federal obligations.

ARGUMENT
THE STATE COURT OF APPEALS' INTERPRETATION OF THE 

CONSTITUTIONALITY OF THE CITY PROGRAM MAY,
IN SOME CIRCUMSTANCES, CONFLICT WITH FEDERAL LAW

A. The United States Constitution Requires That 
Municipalities Fully Remedy Documented Discrimination And Its Effects

The Equal Protection Clause of the Fourteenth Amendment 
provides that [n] o State shall * * * deny to any person 
within its jurisdiction the equal protection of the laws.”
This proscription brings the obligation to remedy violations. 
States or localities that document their own discrimination 
have the “power to eradicate racial discrimination and its 
effects in both the public and private sectors, and the 
absolute duty to do so where those wrongs were caused 
intentionally by the State itself.” City of Richmond v. J.A.



12
Croson Co., 488 U.S. 469, 518 (1989) (Kennedy, J., concurring) 
(emphasis added); id. at 492 (public entities must assure that 
public dollars “do not serve to finance the evil of private 
prejudice") . This obligation is most readily apparent in the 
context of school desegregation, where the Supreme Court has 
made clear that remedies for intentional discrimination by a 
state or locality should “restore the victims of 
discriminatory conduct to the position they would have 
occupied in the absence of such conduct.” Milliken v.
Bradley, 418 U.S. 717, 746 (1974); Missouri v . Jenkins, 515
U.S. 70, 110 (1995) (O'Connor, J., concurring) (where school
district had separated students by race, court “should order
restorations and remedies that would place previously 
segregated black * * * students at par with their white * * * 
counterparts”) . States and localities are thus obligated to 
use any means appropriate, including racial classifications, 
to "dismantle [a] dual [school] system" and its effects. 
Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 458 (1979); see 
also Croson, 488 U.S. at 524 (“States may act by race to 'undo 
the effects of [their own] past discrimination'") (Scalia, J., 
concurring in judgment). The failure to do so “continues the 
violation of the Fourteenth Amendment." Columbus. 443 U.S. at 
459. Indeed, in North Carolina State Board of Education v. 
Swann, 402 U.S. 43, 46 (1971), the Supreme Court invalidated a 
state law that would have prohibited the use of race in 
student assignments, even where necessary to fully remedy the



13
effects of school segregation, stating that the state law 
“conflict[s] with the duty of school authorities to 
disestablish dual school systems.”

Where a municipality can identify discrimination with 
particularity, it has not only the power but the duty under 
the federal Constitution to eradicate the effects of that 
discrimination. Where necessary, it must adopt race-conscious 
measures. Croson. 488 U.S. at 504, 509. See also Palmore v. 
Sidoti, 466 U.S. 429, 432 (1984) (“A core purpose of the
Fourteenth Amendment was to do away with all governmentally 
imposed discrimination based on race.”) (footnote omitted); 
Wyqant v . Jackson Bd. of Educ., 476 U.S. 267, 277 (1986);
Missouri v. Jenkins, 495 U.S. 33, 57-58 (1990) (a State cannot
prevent a local government from implementing a remedy in cases 
where it is necessary to redress a constitutional violation). 
Moreover, as Justice O'Connor stated in Croson. “if [a 
municipality] could show that it had * * * become a 'passive 
participant' in a system of racial exclusion practiced by 
elements of the local construction industry," the City is 
obligated under the Constitution to take measures to 
“dismantle such a system.” 488 U.S. at 492.

The court of appeals took the absolutist position that 
the express language of Article I, Section 31 of the state 
constitution prohibits a municipality from ever voluntarily 
adopting remedial measures that utilize race- and gender­
conscious measures to correct specific findings that



14
discrimination has adversely affected minorities and women.
The court stated that the state constitutional provision “does 
not offer a loophole for discrimination based on the 
government's objectives," 84 Cal. Rptr. 2d at 897, thus 
placing local governments “seeking to eradicate discrimination 
in a no-win situation.” Id. at 891. Local governments, 
however, are not in a “no-win situation.” Not only does the 
United States Constitution require that state-sponsored 
discrimination be remedied; the Supremacy Clause requires that 
Article I, Section 31 yield to the City's federal obligations. 
Moreover, the state constitution itself recognizes this 
principle, and calls for the provisions of Proposition 209 to 
recede where federal law demands. Cal. Const. Art. I,
§ 31(h); see discussion at p. 24, infra.

The federal constitutional obligations of a municipality 
to remedy its own discrimination cannot be undermined by state 
law. The Constitution and laws of the United States are “the 
supreme Law of the Land," and the constitution or laws of any 
State "shall be bound thereby." U.S. Const. Art. VI, Cl. 2. 
State law is preempted when it conflicts with obligations 
demanded of the United States Constitution or federal law.
Gade v. National Solid Wastes Management Ass'n. 505 U.S. 88, 
108 (1992) (“any state law, however clearly within a State's 
acknowledged power, which interferes with or is contrary to 
federal law, must yield”) . A conflict will be found when it 
is impossible to comply with both state and federal law.



15
Florida Lime & Avocado Growers. Inc, v. Paul. 373 U.S. 132, 
142-143 (1963). In this case, the court of appeals'
interpretation of Article I, Section 31 of the state 
constitution may make it impossible for states or 
municipalities to comply fully with federal obligations to 
remedy discrimination in an effective and meaningful way, 
contrary to federal law and apparently contrary to provisions 
of the state constitution (see p. 24, infra).

The United States Supreme Court has permitted state and 
local governments to adopt race-conscious relief for 
constitutional violations where there is a “'strong basis in 
evidence for [their] conclusion that remedial action [is] 
necessary.'” Croson. 488 U.S. at 500 (quoting Wyaant. 476 
U.S. at 277). The governmental entity can demonstrate a 
compelling interest for the use of race-based criteria by 
showing "'gross statistical disparities'” .between the racial 
composition of its workforce, for instance, and the racial 
composition of the relevant qualified labor pool. Croson. 488 
U.S. at 501 (quoting Hazelwood Sch. Dist. v. United States.
433 U.S. 299, 307 (1977)) The use of racial criteria is

Indeed, the Supreme Court has stated: “[S]tatistics can 
be an important source of proof in employment discrimination 
cases, since 'absent explanation, it is ordinarily to be 
expected that nondiscriminatory hiring practices will in time 
result in a work force more or less representative of the 
racial and ethnic composition of the population in the 
community from which employees are hired.'” Hazelwood. 433 
U.S. at 307 (quoting International Bhd. of Teamsters v. United States. 431 U.S. 324, 340 n.20 (1977)).



16
further justified where a governmental entity corroborates its 
statistical evidence with significant anecdotal evidence of 
racial discrimination. See International Bhd. of Teamsters v.
United_States, 431 U.S. 324, 338 (1977) (“The Government
bolstered its statistical evidence with the testimony of 
individuals who recounted over 40 specific instances of 
discrimination.”) . State or local governments that make 
sufficient findings of discrimination are obligated to use 
criteria that may be race-conscious and are narrowly tailored 
to cure the violation and its effects and ensure against 
future racial discrimination. Croson. 488 U.S. at 507-508; 
United States v. Paradise. 480 U.S. 149, 172-175, 183 (1987).
Achieving a narrowly tailored remedy requires consideration of 
race-neutral means as a less restrictive option, Adarand 
Constructors, Inc, v. Pena, 515 U.S. 200, 237-238 (1995), but
where race-neutral means prove unsuccessful, race-based 
measures must be used as a last resort to remedy fully the 
effects of past discrimination. Croson. 488 U.S. at 509; 
Adarand, 515 U.S. at 237. See Walker v. City of Mesquite. 169 
F.3d 973, 982-983 (5th Cir. 1999); Williams v. Babbitt. 115
F.3d 657, 666 (9th Cir. 1997), cert, denied, 523 U.S. 1117 
(1998); Alexander v. Estepp, 95 F.3d 312, 316 (4th Cir. 1996), 
cert, denied, 520 U.S. 1165 (1997).

Under this framework, the Supreme Court has recognized 
the necessity of narrowly tailored, race-conscious remedial 
action to remedy a violation of the Constitution, when race-



17
neutral measures are not effective. For instance, in 
Paradise. the Supreme Court approved a remedial plan requiring 
a state agency to promote one black trooper for every white 
trooper until the ranks were 25% black, in order to remedy 
nearly four decades of "blatant and continuous” exclusion of 
blacks from employment as state troopers. 480 U.S. at 154, 
167. In these egregious circumstances of discriminatory 
action by public employers, federal courts have found that 
race-based measures were the only way that the effects of 
discrimination could be remedied. See Billish v. City of 
Chicago. 962 F.2d 1269, 1278-1279 (7th Cir. 1992)
(statistically significant racial disparity in the hiring and 
promotion practices of city fire department provided a “strong 
basis in evidence” that race-based remedial action was 
necessary to remedy prior discrimination), rev'd, 989 F.2d 890 
(7th Cir. 1993); Boston Police Superior Officers Fed'n v. City 
of Boston, 147 F .3d 13, 19-23 (1st Cir. 1998) (discriminatory 
entry-level testing procedures, coupled with gross racial 
disparity within ranks of city police department, provided a 
strong basis in evidence for race-based remedy).

B • The Court Of Appeals' Interpretation Of Article I. 
Section 31 Of The State Constitution Limits The 
City's Ability To Remedy The Effects Of Its Past 
Discrimination In Conflict With Federal Statutory 
L ciw

The lower court's interpretation of Article I, Section 31 
of the state constitution would also impede a municipality's 
ability to correct actions that have discriminatory effects



18
that are illegal under Title VII (42 U.S.C. 2000e et seq.). or 
Title VI (42 U.S.C. 2000d et. seq. ) . “[Fjederal law may pre­
empt state law to the extent that the state law 'stands as an 
obstacle to the accomplishment and execution of the full 
purposes and objectives of Congress.'" Coalition for Econ. 
Equity v. Wilson. 122 F.3d 692, 709 (9th Cir.) (quoting Hines 
v. Davidowitz, 312 U.S. 52, 67 (1941)), cert, denied, 522 U.S.
963 (1997). Because the lower court's ruling significantly
limits the City's ability to remedy its findings of 
discrimination in these instances, its ruling is in direct 
conflict with federal statutory, as well as Constitutional, 
law.

1. Title VII prohibits “unlawful employment practices" 
that cause intentional discrimination, or neutral employment 
practices that have a disparate impact on protected groups.
42 U.S.C. 2000e-2(a) and (k). While employers are not 
required by Title VII to grant "preferential treatment" to any 
person or group because of race or gender on account of a 
racial or gender imbalance in any community (42 U.S.C. 2000e- 
2(j)), any employer that otherwise engages in unlawful 
employment practices that violate Title VII may be “enjoin [ed]" 
from continuing that unlawful practice and ordered to 
undertake "affirmative action as may be appropriate." 42 
U.S.C. 2 0 0 Oe- 5 (g) (1) .

The Supreme Court has made clear that Title VII's 
prohibition against racial discrimination does not condemn



19
voluntary race-conscious affirmative action plans where such 
programs are adopted to remedy past discrimination. In United 
Steelworkers of America v. Weber. 443 U.S. 193 (1979), the
Court evaluated a plan implemented by a private employer to 
remedy the effects of the exclusion of blacks as 
craftworkers.1' After reviewing Title VII's legislative 
history, the Court concluded that Congress did not intend to 
prohibit employers from implementing programs directed toward 
eradicating discrimination and its effects from the workplace. 
Id• at 204. In Weber. the Supreme Court reviewed the 
extensive legislative history of Title VII, and the historical 
context from which the Act arose, and concluded that Congress1 
purposes behind the statute are twofold: first, to “assure
equality of employment opportunities and to eliminate those 
discriminatory practices and devices which have fostered 
racially stratified job environments to the disadvantage of 
minority citizens" (443 U.S. at 201-203; see also McDonnel1 
Douglas Corp, v. Green. 411 U.S. 792, 800 (1973)), and
secondly to end the segregative effects of discrimination (see 
Johnson v. Transportation Agency. 480 U.S. 616, 630 (1987)).

" Prior to the affirmative action plan, the company in 
Weber only hired craftworkers with prior craft experience. 
Black workers were unable to qualify for craftworker positions because they had been intentionally excluded from craft 
unions. As a result, while the local labor force was 39% 
black, the employer's workforce was less than 15% black, and 
its crafts-workforce was less than 2%. The plan was 
challenged by a white production worker alleging that the plan 
discriminated against white employees in violation of Title VII. 443 U.S. at 198-199.



20
"The significance of this second corrective purpose cannot be 
overstated." Taxman v. Board of Educ.. 91 F.3d 1547, 1557 (3d
Cir. 1996), cert, granted, 521 U.S. 1117, and cert, dismissed, 
522 U.S. 1010 (1997). “It is only because Title VII was 
written to eradicate not only discrimination per se but the 
consequences of prior discrimination as well, that racial 
preferences in the form of affirmative action can co-exist 
with the Act's anti-discrimination mandate." Ibid.

In Johnson, the Court held that Title VII permitted 
affirmative action plans that sought to remedy a "'manifest 
imbalance' that reflected [an] under-representation of women 
in 'traditionally segregated job categories,'" which, in some 
circumstances, considered race or sex in personnel decisions. 
480 U.S. at 631. These affirmative, remedial measures are 
permissible under Title VII where the measures do not 
unnecessarily trammel the rights of non-minorities or men, or 
create an absolute bar to their advancement. Id. at 637-640; 
Weber, 443 U.S. at 208-209. Based on this statutory 
interpretation of Title VII, the Supreme Court and lower 
federal courts have approved consent decrees that embody 
"race-conscious relief” in order to settle or avoid further 
Title VII litigation by victims of discrimination, since 
“Congress intended voluntary compliance to be the preferred 
means of achieving the objectives of Title VII." Local No. 93 
v - City of Cleveland, 478 U.S. 501, 515 (1986). In Local No
9.3, the Court approved the use of minority hiring and



21
promotion goals adopted by a city fire department pursuant to 
a consent decree to remedy "a historical pattern of racial 
discrimination,’’ and to settle a Title VII class action suit 
filed by black and Hispanic firefighters. Id. at 511-512.
See also Edwards v. City of Houston. 37 F.3d 1097, 1111 (5th 
Cir. 1994) (consent decree containing race-based relief 
entered to settle Title VII class action), rev1d in part on 
other grounds, 78 F.3d 983 (5th Cir. 1996); Officers for 
Justice v. Civil Serv. Comm'n. 979 F.2d 721, 726 (9th Cir.
1992) (court approves Title VII consent decree that permits 
consideration of race in promotions, where discriminatory 
entrance examination, city's admission of past discrimination, 
and continued evidence of discriminatory impact of these 
policies creates a “strong basis in the evidence” supporting 
relief), cert, denied, 507 U.S. 1004 (1993).

The lower court's decision prohibiting any race-based 
remedial measures in any context pursuant to Article I,
Section 31 of the state constitution, flies in the face of a 
public employer's Title VII duty to take corrective action to 
remedy discrimination in a way that is effective, meaningful, 
and properly tailored to the statutory violation.

Moreover, the lower court's reliance on Coalition for 
Economic Equity to support its interpretation of Article I, 
Section 31 is overbroad and, in the context of employment, can 
adversely affect a municipality's obligations under Title VII 
to remedy fully the effects of discrimination. In Coal it ion.



22
the Ninth Circuit held that Title VII did not preempt 
Proposition 209. 122 F.3d at 709-710. Citing to Section 708
of Title VII, 42 U.S.C. 2000e-7, the court observed that the 
statute preempts only state laws that “require or permit the 
doing of any act which would be an unlawful employment 
practice under this subchapter." 122 F.3d at 710. Finding 
that Proposition 209 did not purport to require the doing of 
any act that would be an unlawful employment practice under 
Title VII, the court of appeals in Coalition concluded that 
“Title VII, therefore, does not pre-empt Proposition 209."
Ibid. Based on that holding, the lower court in Hi-Voltage 
held that Article I, Section 31 prohibits “all discriminatory 
treatment based on the identified categories,” and thus 
“'provides greater protection to members of the gender and 
races otherwise burdened by the preference.'" 84 Cal. Rptr. 2d 
at 894 (quoting Coalition. 122 F.3d at 709 n.18).

The Ninth Circuit in Coalition. however, did not hold 
that state law was not preempted in those limited 
circumstances where the federal law required action 
inconsistent with Proposition 209. Rather, the court of 
appeals held only that Proposition 209 was not preempted by 
Title VII because, it held, Section 2000e-2(j) of Title VII 
states that Title VII does not require preferential treatment. 
As explained below, when a remedial obligation requires the 
use of race to fully remedy proven discrimination, however, 
Section 2000e-2(j) does not preclude the use of such a remedy.



23
Therefore, Coalition does not establish that Title VII and 
other federal law can never conflict with a prohibition on all 
race-conscious remedies.

2. The lower court held that Article I, Section 31 does 
not conflict with Title VI because “[n]either Title VI nor its 
implementing regulations impose a duty on public entities to 
implement remedial affirmative action programs that result in 
discrimination or preferential treatment.” 84 Cal. Rptr. 2d 
at 898. Contrary to the lower court's holding, Title VI was 
designed by Congress to enforce the equal protection 
requirements of the Fourteenth Amendment. The legislative 
history of the statute shows that the "real objective" of 
Title VI was "the elimination of discrimination in the use and 
receipt of Federal funds." 110 Cong. Rec. 6544 (1964) (Sen.
Humphrey). See also id. at 7062 (Sen. Pastore). While Title 
VI prohibits acts of discrimination, the Supreme Court and 
lower federal courts have held that the statute “cannot be 
read to forbid remedies which are constitutionally required 
and unavoidably race-conscious" to remedy the effects of 
discrimination. Detroit Police Officers' Ass'n v. Young. 608 
F.2d 671, 691 (6th Cir. 1979), cert, denied, 452 U.S. 938 
(1981); see Regents of the Univ. of Cal, v. Bakke. 438 U.S.
265 (1978); id. at 348-350 (opinion of Brennan, White,
Marshall & Blackmun, JJ.) ; Ful1ilove v. Klutznick. 448 U.S.
448, 492 (1980) (Burger, C.J.); id^ at 517 n.15 (Powell, J.);
id^ at 517 n.l (Marshall, J.). Since this remedial obligation



24
also applies in the context of Title VI, the lower court's 
interpretation of Article I, Section 31 of the state 
constitution conflicts with this statute as well.

C. Subsection (h) Of Article I, Section 31 Establishes 
That Proposition 209 Recedes When Federal T.aw Requires Race-Based Action

The lower court's interpretation not only conflicts with 
federal constitutional law, but also ignores Subsection (h) of 
Article I, Section 31 of the state constitution itself, which 
states that the provision prohibiting preferences will be 
implemented only to the extent “that federal law and the 
United States Constitution permit." If the lower court's 
ruling is permitted to stand, the prohibition against the use 
of race-based remedial measures in circumstances where such 
measures are required under federal law to cure a 
constitutional or statutory violation creates a direct 
conflict with federal law; Subsection (h) clearly was intended 
to avoid such a conflict.

Indeed, the Supreme Court and federal appellate courts 
charged with the responsibility for enforcing the United 
States Constitution have imposed race-based measures on 
recalcitrant public employers who have failed to put into 
place effective remedies (see pp. 16-17, supra). The state 
court of appeals' overbroad ruling prohibiting any use of race 
for remedial measures regardless of the effects of the 
violation can directly conflict with the federal obligations 
of state and local governments seeking to remedy the effects



25
of past discrimination, and therefore is inconsistent with 
Article I, Section 31, Subsection (h), of the state 
constitution which allows the use of race-based measures when 
necessary to avoid this precise kind of conflict.

CONCLUSION
For the foregoing reasons, if this Court does find that 

the City Program is a race-based remedial measure constituting 
a "preference" under Article I, Section 31 of the state 
constitution, and reaches the question presented by the United 
States, the Court should vacate the lower court's decision and 
remand for further proceedings to give the state district 
court the initial opportunity to evaluate the City Program and 
the City's findings of prior discrimination.

Respectfully submitted,
STUART J. ISHIMARU 
Deputy Assistant 
Attorney General

LISA W. EDWARDS 
Attorneys
Department of Justice 
Civil Rights Division P.0. Box. 66078 
Washington, D.C. 20035-6078 (202) 514-5695



CERTIFICATE OF SERVICE
I hereby certify that on January 4, 2000, two copies of the

Brief for the United States as Amicus Curiae were sent by
overnight mail, postage prepaid, to the following persons:

Joan R. Gallo 
Glenn D. Schwarzbach 
Office of the City Attorney 151 West Mission Street 
San Jose, California 95110
Sharon L. Browne
Deborah J. LaFetra
Mark T. Gallagher
Pacific Legal Foundation
10360 Old Placerville, Suite 100
Sacramento, California 95827
Clerk, California Court of Appeal 
Sixth Appellate District 

333 W. Santa Clara Street, Rm. 1060 
San Jose, California 95113
Honorable Richard C. Turrone 
Santa Clara County Superior Court 191 N. First Street 
San Jose, California 95113

U^fjko ahtlr
Lisa W. EdwardsAttorney