PLF ANALYSIS: CALTRANS RACIAL QUOTA PLAN WOULD BE FLATLY ILLEGAL

SACRAMENTO, California; September 10, 2007:  The California Department of Transportation (Caltrans) will violate the California Constitution if it reverts to awarding public contracts based on applicants’ race or sex.  So argues Pacific Legal Foundation, in a just-released formal analysis of Caltrans’ new racial-quota proposal.  Authored by Principal Attorney Sharon L. Browne, the PLF analysis has been sent to the United States Department of Transportation and Governor Arnold Schwarzenegger as well as to officials at Caltrans.

In spring, 2006, Caltrans dropped its previous race- and sex-based contracting policies after PLF sent a “demand” letter arguing that the scheme violated federal law and Proposition 209, the California Constitution’s ban on racial and sexual discrimination and preferences in public contracts, employment and education.  But last month, Caltrans petitioned the federal government for permission to reinstate race-based and sex-based goals in the awarding of public works contracts.

As justification, the agency cited a “disparity study” that it commissioned, which reports that Caltrans dollars going to minority contractors don’t match the percentage of “available” minority firms.

“Race-based quotas are wrong – and illegal – and this disparity study doesn’t change that fact,” said Sharon Browne.  “Proposition 209 is categorical in outlawing the discrimination and preferences that Caltrans is contemplating.  Moreover, there is no federal law or federal court ruling that supersedes California’s ban on discrimination or preferences in this context.  Where federal courts have permitted race-based contracting as a remedial policy, there must be solid, specific evidence of past discrimination.  Far from meeting that standard, the Caltrans study relies on what the Supreme Court, in Richmond v. Croson, dismissed as ‘percentage disparities and generalized claims of discrimination’ – in other words, vague showings that, at most, invite inferences but clearly don’t offer facts.”

As Browne writes in her formal analysis:  “Caltrans’ Disparity Study does not show that any contractor’s low bid was rejected because it was submitted by a minority.  Also, if there is any evidence of discrimination by contractors, Caltrans should disbar contractors who discriminate against minority and women subcontractors.  Similarly, any Caltrans employees who discriminate against minority and women firms should be disciplined.”  Yet there is no indication in the Disparity Study that any Caltrans employee or contractor has been fired or disciplined for perpetrating the “discrimination” that Caltrans alleges to have happened.

Caltrans has refused to provide PLF with underlying data supporting the agency’s Disparity Study.  “We’ve faced weeks of stalling in response to our Public Records Act request for evidence to support the report,” said Browne.

One thing that the Disparity Study does establish, she noted, is that Caltrans has not exhausted racially neutral alternatives before resorting to race-based measures.  “Federal regulations and Supreme Court precedents say that race-based remedies are to be used only as a last resort.  Yet this is the ‘first resort’ that Caltrans has checked into.  The Disparity Study itself admits that Caltrans hasn’t fully employed such race-neutral measures as breaking projects up into smaller contracts and adjusting bonding requirements.”

“California voters spoke clearly when they passed Proposition 209 and outlawed government policies that play favorites by race,” said Browne.  “Caltrans’ proposed return to racial preferences disrespects voters and violates the law.”

Browne’s formal comments on the Caltrans quota plan are available at PLF’s Website.

About Pacific Legal Foundation
Pacific Legal Foundation (www.pacificlegal.org) is the oldest and most successful public interest legal organization that litigates for property rights, limited government, and a balanced approach to environmental regulations, in courts across the country.  A 35th Anniversary video, highlighting PLF’s history and mission, may be viewed at:  http://youtube.com/watch?v=HnBSlRQwxKU.