More than a decade after voters enacted Proposition 209, the constitutional measure outlawing race- and gender-based discrimination by public agencies in California, the effort to enforce it continues to meet resistance from government officials.
Whether through misunderstanding, inertia or ideologically-based defiance, many government agencies continue to treat people differently based on skin color or gender, despite the law's clear prohibition.
Inevitably, appellate courts have recognized these policies as illegal. The state government, local officials in San Jose and Sacramento and school districts in Huntington Beach and San Juan Capistrano have all been on the losing end of Proposition 209 litigation.
Now, the spotlight turns to the California Department of Transportation.
With the apparent approval of Gov. Arnold Schwarzenegger, Caltrans has announced that in 2008 it will use race, ethnicity and gender when awarding contracts under the federal highway program. What are the agency and the governor up to?
Caltrans claims that it must employ such favoritism to make up for past discrimination by the agency or it will lose federal highway funds. In reality, it can't support its findings that such discrimination occurred, and even it if could, it admits that it hasn't exhausted nondiscriminatory remedies, as the law requires it to do.
Caltrans justifies flouting Proposition 209 by pointing to a loophole in the law that allows preferences to be used if federal funding would be at risk. Yet there is no real evidence that federal funding is at risk.
Consider this: In May 2006, Caltrans abandoned its policy of favoritism for minority- and female-owned business enterprises. California has since lost no federal highway funds because it went race-neutral, and the federal government hasn't requested Caltrans to remedy discrimination problems.
Nevertheless, on Aug. 1 of this year, the agency did an about-face, abandoning its barely year-old colorblind policy. For 2008, and in accordance with federal regulations, Caltrans submitted an overall goal to Washington of 13.5% participation for minority- and female-owned businesses. It based that goal on a "disparity study" that it commissioned, which, according to Caltrans, documents a discriminatory pattern in past contracting. To meet its goal, Caltrans claims that it must take race, ethnicity and gender into account in half of its hiring programs. In the same document, however, Caltrans admits that it has yet to put into place 40 race-neutral mechanisms for remedying disparities.
