Allan Favish is a Los Angeles-based attorney whose focus is on General Insurance Defense and Litigation Insurance Coverage/Reinsurance & Bad Faith Litigation. A UCLA graduate, he received his J.D. at Hastings College of Law in 1981.
Education Code §§ 87100-87107 require the governing board of each community college district to establish an affirmative action plan (with goals and timetables) to hire and promote "persons who are underrepresented in the work force compared to their number in the population, including handicapped persons, women, and persons of racial and ethnic backgrounds" with respect to administrative, faculty, and other positions. The Chancellor and the Board have the responsibility to enforce this requirement. The State Controller has the duty to disburse State funds appropriated for this purpose.
Although there is a conclusory reference to unspecified "employment practices" that created "artificial barriers" in the legislative findings, no effort to remedy any such practice is made and no specific practice is identified. Instead, the statute expressly seeks affirmative action programs to remedy underrepresentation "whatever the cause." The stated purpose of the affirmative action plan is to achieve a work force with a racial composition that mirrors that of the general population as opposed to that of the qualified applicant pool in the relevant labor market.
Further, the express statutory goal of strict racial proportionality in all employment classifications is based on a role model theory rejected by the United States Supreme Court. Section 87100(b) states as a purpose for the law: "It is educationally sound for the minority student attending a racially impacted school to have available the positive image provided by minority classified and certificated employees." The U.S. Supreme Court, however, has rejected this role model theory as a legitimate basis for racial hiring preferences. In his plurality opinion, Justice Powell noted: "Carried to its logical extreme, the idea that black students are better off with black teachers could lead to the very system the Court rejected in Brown v. Board of Education." Wygant v. Jackson Board of Education, 476 U.S. 267, 276 (1986) (plurality opinion of Powell, J.).
The statute also improperly requires that "the system's work force ... reflect proportionately the adult population of the state." Educ. Code § 87107(a).
Section 87101 further commands local community college boards to set aside qualified candidates in order to favor affirmative action candidates "who [with regard to local qualifications above the State minimum] may become qualified through appropriate training or experience within a reasonable length of time." Educ. Code § 87101(a).
The statute also creates a "diversity fund" in the State Treasury to help finance the goal of strict racial proportionality in all employment classifications. Educ. Code § 87107. The Board disburses this money to the local districts based on their adherence to the race-based hiring scheme set out in the statute. 5 Cal. Code of Regs. § 53030, et seq.
The State Personnel Board is charged with the task of implementing and enforcing Government Code §§ 19790-19799. Those sections require State agencies to establish "affirmative action" programs in order to achieve racial and ethnic proportionality in the work force. The State Controller has the duty to approve and disburse State funds that are used to enforce these sections.
Under these laws, the Board has the duty to implement and enforce programs to eliminate any statistical disparities, called "underutilization," in the racial and ethnic composition of State agency workers in every occupation and in every department, regardless of the cause.
In adopting these laws, the Legislature did not make any findings of specific discrimination which required a remedy. Instead, the Legislature's findings and declarations, on which the laws were based, set out a policy to eliminate statistical disparities in staffing: "Beyond assurances of nondiscrimination, it is the policy of the State of California to have each state hiring unit initiate comprehensive written affirmative action programs which will take steps to remedy any disparate staffing and recruitment patterns." 1977 Cal. Stat., ch. 943, § 1.
These laws expressly require every agency and department in State government to establish "goals and timetables designed to overcome any identified underutilization of minorities and women in their respective organizations." Gov't Code § 19790. "Underutilization" is defined in the law as merely "having fewer persons of a particular group in an occupation or at a level in a department than would reasonably be expected by their availability." Gov't Code § 19791(c). Each agency must specify annually the actions it will take to reduce "underutilization" of women and minorities. Gov't Code § 19797. Further, affirmative action officers are established in each agency to implement the affirmative action plan. Gov't Code § 19795.
The State Treasurer has the primary responsibility for the sale of the State's bonds. These sales are complex financial transactions that involve contracting with outside counsel, accountants, auditors, consultants, and others.
In letting these contracts, Government Code § 16850 requires the State Treasurer to meet a goal of awarding not less than 15% of the annual value of professional bond services contracts to minority-owned firms and not less than 5% to women-owned firms.
In order to meet this "goal," Government Code § 16850 requires the State Treasurer to consider establishing cocounsel, joint venture, and subcontracting relationships.
In adopting this "goal," the Legislature did not make any findings that the Treasurer or any other State entity has engaged in discriminatory conduct against minority- and women-owned businesses that provide professional bond services.
This "goal" was also adopted without regard to the percentage of businesses qualified to provide professional bond services that are owned by women or minorities.
State law grants the Director of the California State Lottery the authority to contract for the purchase or lease of goods and services necessary to the operation of the lottery. The State Controller disburses funds to pay for those contracts and to enforce the provisions of Government Code § 8880.56.
In awarding contracts for goods and services in excess of $500,000, the Director and the California State Lottery Commission are mandated to require that bidders and contractors establish plans to subcontract a portion of the contract to "socially and economically disadvantaged" business enterprises. Gov't Code § 8880.56(b)(4).
Under the statute, "socially and economically disadvantaged persons" include women, Black Americans, Hispanic Americans, Native Americans (including American Indians, Eskimos, Aleuts, and Native Hawaiians), Asian-Pacific Americans (including persons whose origins are from Japan, China, the Philippines, Vietnam, Korea, Samoa, Guam, the United States Trust Territories of the Pacific, Northern Marianas, Laos, Cambodia, and Taiwan), and other minorities or any other natural persons found by the commission to be disadvantaged.
There is no finding of prior discrimination by the lottery or any of its contractors against any of the groups in the list of preferred minorities, nor is there a finding of such discrimination against women-owned business. In enacting this provision, the Legislature stated its intent merely as "the advancement of business opportunities" for firms owned by minorities and women.
The Department of General Services was "created to provide centralized services including, but not limited to, planning, acquisition, construction, maintenance and police protection of State buildings and property; purchasing; printing; architectural services; administrative hearings; and accounting services." Gov't Code § 14600. In the 1993-94 Fiscal Year, the Department let more than $700 million in contracts for commodities, services, and construction. The State Controller disburses and approves for disbursement the funds for these contracts as well as the funds necessary for the Department to review and let the contracts.
In selecting contractors to perform this work, Public Contract Code §§ 10115-10115.15 forbid the Department from limiting its selection criteria to the lowest bid. Instead, those laws require state agencies or departments to establish a goal that 15% of the value of the contract work will be provided to minority-owned businesses and 5% of the value to women owned-businesses. Contracts are then let to the lowest bidder who meets this goal or who, in the discretion of the agency, has made good faith efforts to meet the goal. Pub. Cont. Code § 10115.2(a); 2 Cal. Code of Regs. § 1896.63(b).
The Public Contract Code defines minority for these purposes as including a citizen or lawful permanent resident who is,
an ethnic person of color and who is: Black (a person having origins in any of the Black racial groups of Africa); Hispanic (a person of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish or Portuguese culture or origin regardless of race); Native American (an American Indian, Eskimo, Aleut, or Native Hawaiian); Pacific-Asian (a person whose origins are from Japan, China, Taiwan, Korea, Vietnam, Laos, Cambodia, the Philippines, Samoa, Guam, or the United States Trust Territories of the Pacific including the Northern Marianas); Asian-Indian (a person whose origins are from India, Pakistan, or Bangladesh); or any other group of natural persons identified as minorities in the respective project specifications of an awarding department or participating local agency.
Pub. Cont. Code § 10115.1(d).
Nothing in the statute operates to restrain the discretion of an agency to add other "minorities" to this list in the project specifications.
This statute forces the Department to place the onus of meeting the goals on the prime contractors who bid on State contracts. Even if the prime contractor is able to do all the work at the lowest price, it is not permitted to perform all of the work on the contract itself, but must instead subcontract a portion of the work to minority- and women-owned businesses or make "good faith" efforts to do so.
The determination of whether a bidder has made satisfactory "good faith" efforts to meet the subcontracting "goals," which are themselves expensive and burdensome, rests in the sole discretion of the awarding department. 2 Cal. Code of Regs. § 1896.63(b).
These requirements "have the practical effect of requiring" prime contractors to adopt bid preferences and set asides for women- and minority-owned businesses. these statutes "effectively encourage, if not compel, [prime contractors] to adopt discriminatory programs." Bras v. California Public Utilities Commission, 59 F.3d 869, 875 (9th Cir. 1995).
In declaring its intent in the enactment of the 15% and 5% "goals" the Legislature declared it to be the policy of the State to strive for racial and gender proportionality in the award of State contracts. Pub. Cont. Code § 10115. There is no finding, however, of a substantial basis in evidence that each of the listed minority beneficiaries have been the victims of discrimination at the hands of the State, nor is there any narrow tailoring of the program to ensure, that it does not extend beyond the time necessary to eradicate any such discrimination.
The preceding information is from a lawsuit in which Governor Pete Wilson is suing various state officials and state agencies in an effort to get numerous state government race and sex preferences declared unconstitutional. The information is excerpted from the "Petition for Writ of Mandate and Memorandum of Points and Authorities in Support of Petition for Writ of Mandate" in Pete Wilson v. State Personnel Board, et al. The Petition was written by the attorneys representing Governor Wilson:
Anthony T. Caso, Bar No. 088561
Robert J. Cory, Bar. No. 171979
Pacific Legal Foundation
2151 River Plaza Drive, Suite 305
Sacramento, CA 95833
Telephone: (916) 641-8888
The lawsuit is also available from:
Office of Governor Pet Wilson
Sacramento, CA 95814
Telephone (916) 445-4571
The following is a quote from Sandy Harrison, Wilson expected to quash affirmative action panels, LOS ANGELES DAILY NEWS, at 1, col. 2 (May 1, 1995):
The California State Personnel Board's 218-page Affirmative Action Manual further requires careful tracking within each department of the number of hires and promotions going to women and minorities, and requires supervisors to set goals for female and minority representation.
The manual advises managers to actively seek out women and minorities for state jobs through narrowly focused advertising aimed specifically at members of those groups.
When jobs require testing that tends to disqualify members of those groups, the manual suggests reviewing and, if necessary, changing the tests to achieve more desirable results.
When recruiting and testing yields qualified candidates of both majority and minority status, the manual says to hire the minority or female candidate.
"An effort should be made to remind the supervisor of the department's affirmative action goal and the need to hire underrepresented group members," the manual says.