|Pacific Legal Foundation Sues
San Francisco and Mayor Willie Brown for
Violating Anti-Bias Initiative -- Proposition 209
Pacific Legal Foundation
January 19, 1999: The Sacramento-based Pacific Legal Foundation sued
the City of San Francisco and its mayor, Willie Brown, for violating Proposition 209 by
allowing only minority- or women-owned businesses to bid on certain public contracts
(Taber v. City and County of San Francisco).
Amazingly enough, San Francisco has an ordinance - in defiance of Proposition 209 - which
sets-aside a percentage of city contracts for companies owned by women or
minorities. The city notified Ford Graphics in July 1998 that it was ineligible to
bid on a project calling for reprographic services because (a) Ford Graphics is owned by a
"white male"; and (b) the contract in question was set-aside exclusively for
minority or women owned businesses.
Proposition 209 is now a part of the California State Constitution (Section 31 of Article
I). The law is modeled after the Civil Rights Act of 1964and prohibits state and
local governments from discriminating against or granting preferential treatment to anyone
on the basis of race and gender in public contracting.
PLF's legal action against San Francisco's public contracting "set-aside" policy
[Administrative Code Sec. 12D.6(B.7)] follows on the heel of the Board of Supervisors'
recent endorsement of a plan to extend its race/gender preference policies into the year
PLF's lawsuit was brought on behalf of a number of San Francisco taxpayers and Tom Taber,
a sales representative for Ford Graphics in San Francisco. Taber was prohibited from
bidding on a city project requiring reprographic services because the firm he worked for
was not an "economically disadvantaged local business," which under the city's
code means minority- or women-owned businesses.
"Any government policy that
outright prohibits certain people from bidding on a contract is, without question,
discriminatory and therefore violates Proposition 209's equal treatment mandate,"
said Mark T. Gallagher, an attorney with PLF which helped win a major ruling in 1997 from
the U.S. Ninth Circuit Court of Appeals upholding the constitutionality of Proposition
209. "Equal treatment under the law is impossible in San Francisco so long as city
officials continue to grant special privileges and preferences to politically favored
groups," said Gallagher. Click here to see the complaint.
The San Francisco Board of
Supervisors voted last September to expand its decade-old Minority-Women-Local Business
Enterprise Program to Arab Americans and Native Americans to increase the types of groups
given contract preferences. Other groups given preferential treatment in contracting are
African Americans, Asian Americans, Latinos, and women.
Headquartered in Sacramento, California, PLF is a public interest, nonprofit organization
dedicated to litigating nationwide in defense of private property rights, individual and
economic freedoms, and limited government. PLF has opposed race and gender preferences,
quotas, and set-asides in government contracting for nearly 25 years.
(Be sure to visit Pacific Legal
Foundation's web site at http://www.pacificlegal.org
Francisco's minority contract quotas stand (07/13/00)
Too bad for Tom Taber and other white business owners in San Francisco. According to
the San Francisco Examiner "The City's contracting preferences for women and
minorities have survived another legal challenge.
"The state Supreme Court denied a hearing Wednesday in an appeal by a white
contractor's salesman and three other local residents, suing as taxpayers. Their suit was
based on Proposition 209, the 1996 initiative that outlawed preferences based on race or
sex in state and local contracting, employment and education.
"A Superior Court judge and an appellate court refused to decide whether the
set-asides would violate Prop. 209, instead saying the suit was premature because the
ordinance had not been enforced and might never be needed. The state's high court
unanimously denied review, without comment.
"The issue isn't going away, said attorney John Findley of the Pacific Legal
Foundation, which filed the suit. He said the foundation had another suit pending, in both
U.S. District Court and San Mateo County Superior Court, claiming illegal preferences in
San Francisco's airport hiring policies. "I'm sure that there will be more to
come, because San Francisco is one of the leaders in the massive resistance to the
policies of non-discrimination set forth in Proposition 209," Findley said.
Marc Slavin, an attorney for the city, said "We feel very strongly that the ordinance
that we have is designed to remedy ongoing discrimination for which The City is directly
responsible, and we have a constitutional obligation to correct that problem," Slavin
said. "We don't think Prop. 209 changes that."
"One plaintiff in the case decided Wednesday, salesman Tom Taber, said in the suit
that he would lose commissions because his company would be unable to bid on city
contracts on the same basis as firms owned by women and minorities.
"Superior Court Judge Ronald Quidachay dismissed the suit without a trial. The 1st
District Court of Appeal upheld his ruling this April, saying none of the plaintiffs had
shown any likelihood of "imminent or significant hardship" from the mere
presence of the set-aside ordinance on the books."
Significantly, the Court did not comment on the racism inherent in city policies which
give certain races preferential treatment in the award of city contracts. (Based on
the San Francisco Examiner, 07/13/00 by Bob Egelko)
[ link http://www.sfgate.com/cgi-bin/article.cgi?file=/examiner/hotnews/stories/13/Bpreference.dtl
Related: Pacific Legal Foundation Sues Sacramento
Utility District over Quotas (06/20/00)
The racial quota lobby in California just doesn't get it: Proposition 209 wiped out
the use of racial quotas and preferences, but California agencies continue to ignore the
law, and are repeatedly sued.
In this case, a public contracting program that gives special preferences to minority- and
women-owned businesses seeking contracts with the Sacramento Municipal Utility District
(SMUD) is unconstitutional and violates Proposition 209, according to a lawsuit filed
today by the
Sacramento-based Pacific Legal Foundation.
PLF sued on behalf of United Utilities, Inc., and C & C Construction, Inc., two firms
that have been subjected to unequal treatment under SMUD's policies. "SMUD's public
contracting program hurts everyone involved--the utility customers, prime contractors, and
minority-owned firms," said PLF attorney Stephen McCutcheon.