Court rejects Brown’s stance on Prop. 209

California’s Supreme Court today struck down San Francisco’s challenge to the part of the state constitution enacted by Proposition 209 of 1996, which prohibits government entities from discriminating against or granting preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in public contracting.

In doing so, it went against the advice of California Attorney General and Democratic gubernatorial nominee Jerry Brown.

The court in March 2009 had asked Brown’s office to file a brief addressing whether Article I, Section 31 as enacted by Prop. 209 violates federal equal protection principles by making it harder to enact laws on behalf of minority groups, and if so, if Prop. 209 was narrowly tailored to serve a compelling government interest.

Brown in April 2009 filed a brief saying the section was constitutional insofar as it simply barred race- and gender-based discrimination, but was unconstitutional when “interpreted more broadly to bar race- or gender-conscious programs that would be permissible under the Fourteenth Amendment,” creating “an unequal political structure based on race and gender that is not narrowly tailored to achieve a compelling governmental interest.”

Back in 1996, then-Attorney General Dan Lungren – now a Republican Congressman – had argued that Prop. 209 didn’t involve the U.S. Supreme Court’s Hunter-Seattle doctrine, which established that the Equal Protection Clause is violated by a discriminatory restructuring of governmental decision-making in a way that places a “special burden” on specific groups without a constitutionally sufficient justification.

But Brown’s office last year said it could, arguing Prop. 209 “closes a door to race- and gender-conscious programs that the Fourteenth Amendment leaves open” and so “must be justified by a constitutionally sufficient reason.” And Brown’s office found no such reason.

“(T)here appears to be no factual basis to support a governmental interest in denying preferences that are permissible under the Fourteenth Amendment,” State Solicitor General Manuel Medeiros wrote for Brown. “Ironically, by effectively disadvantaging racial minorities and women in the political process, without an evident compelling governmental reason for doing so, section 31 seems to accomplish the very evil it purported to eliminate, viz. racial and gender discrimination.”

The Pacific Legal Foundation, representing the plantiff companies suing San Francisco for violating Prop. 209, filed a reply brief last year blasting Brown’s position.

Prop. 209 didn’t create a racial classification and didn’t restructure the political process to burden or benefit any race or gender compared to any other, the foundation argued, and Brown was wrong to presume the California Constitution can’t prohibit race- or sex-based discrimination that would be permissible under the 14th Amendment – the U.S. Constitution is a floor, not a ceiling, for protection of individual rights.

“The Attorney General’s current argument would turn the California Constitution on its head by prohibiting voters from ever amending their constitution to prohibit governmental entities from adopting public contracting programs that treat individuals and groups differently, or encourage others to do so on the basis of race or sex,” the foundation argued, accusing Brown of taking his position for the sake of “political expediency.”

The court issued a decision today concluding section 31 does not violate the political structure doctrine, essentially rejecting Brown’s analysis.

Sharon Browne“It is unfortunate that California’s attorney general is not willing to defend the California Constitution but (is) actively trying to get it declared unconstitutional,” PLF principal attorney Sharon Browne said today in an e-mail. “Mr. Brown’s position is especially disturbing when Proposition 209 guarantees equal opportunities to all regardless of race or gender. Proposition 209 provides more protection to the people of California against discrimination and preferences than the United States Constitution.”

Brown’s argument was “particularly disturbing” given its reversal of Lungren’s stance, Browne said. “The ‘political expediency’ refers to the fact that Mr. Brown’s position that Proposition 209 is unconstitutional came 12 years later after the 9th Circuit found Proposition 209 constitutional, and Mr. Browne’s arguments are precisely the opposite of those presented by a former Attorney General.”

UPDATE @ 4:36 P.M.: Brown spokeswoman Christine Gasparac just sent this statement:

“Our position was very effectively conveyed by Justice Moreno in his dissent. He pointed out that Proposition 209 does not limit all preferential treatment in public employment, public education, and public contracting; rather, it limits only race and gender preferences. Proposition 209 does not, for example, limit preferences given to local residents in public employment or to children of alumni in admission to public educational institutions. Justice Moreno found that it is this unique burden on the ability of women and racial minorities to obtain preferential legislation that violates the Constitution.”

Josh Richman

Josh Richman covers state and national politics for the Bay Area News Group. A New York City native, he earned a bachelor’s degree in journalism from the University of Missouri and reported for the Express-Times of Easton, Pa. for five years before coming to the Oakland Tribune and ANG Newspapers in 1997. He is a frequent guest on KQED Channel 9’s “This Week in Northern California;” a proud father; an Eagle Scout; a somewhat skilled player of low-stakes poker; a rather good cook; a firm believer in the use of semicolons; and an unabashed political junkie who will never, EVER seek elected office.

  • For Liberty

    California!!! Please wake-up to the deterioration of our republic. Start the process of restoring it in November by electing Chelene Nightingale for governor. Find out more at the following link:


  • Pat the Patriot

    Court rejects Brown’s contorted logic? Amen.


    Chelene Nightingale Loses supporters because of constant filp flopping on issues and lying to her supporters. We will not support this woman who would not come clean about her filing for bankruptcy. She was duping us and we are mad!!