CA High Court Says Minority Preferences in Public Contracting are Banned

August 3, 2010 ( - The California Supreme Court has rejected much of San Francisco's legal justification for the continuing use of minority preferences in public contracting.

Writing for the court, Justice Kathryn Mickle Werdegar said such preferences are banned under Proposition 209, and San Francisco is unlikely to establish that its program was compelled by federal law, according to The Recorder.  

In its 6-1 opinion, the court dismissed the city’s argument that Prop 209’s restrictions on minority preferences violated the political structure doctrine by essentially locking existing inequality into place. The news report said the city argued that because minority and women contractors weren’t on equal footing, restricting preferences — and making those restrictions part of state law that can’t easily be changed — violated federal equal protection principles.  

The court said that on remand, the city can try to show its program is required, but to do so, it must show that the city intentionally discriminates against minority- and women-owned businesses, prove that preferences would be designed to rectify that discrimination, show that the remedy is narrowly tailored, and demonstrate that taking race and gender into account is the only, or most likely, way to address the problem.  

The opinion in Coral Construction v. City and County of San Francisco is here.