No. 12-682
================================================================
In The
Supreme Court of the United States
-----------------------------------------------------------------BILL SCHUETTE,
ATTORNEY GENERAL OF MICHIGAN,
Petitioner,
v.
COALITION TO DEFEND AFFIRMATIVE
ACTION, INTEGRATION AND IMMIGRANT
RIGHTS AND FIGHT FOR EQUALITY BY ANY
MEANS NECESSARY (BAMN), ET AL.,
Respondents.
-----------------------------------------------------------------On Writ Of Certiorari To The
United States Court Of Appeals
For The Sixth Circuit
-----------------------------------------------------------------AMICUS CURIAE BRIEF OF SAN FRANCISCO
BAY AREA RAPID TRANSIT DISTRICT IN
SUPPORT OF RESPONDENT COALITION TO
DEFEND AFFIRMATIVE ACTION, INTEGRATION
AND IMMIGRANT RIGHTS AND FIGHT FOR
EQUALITY BY ANY MEANS NECESSARY (BAMN)
-----------------------------------------------------------------JOSEPH A. HEARST
1563 Solano Ave. #525
Berkeley, CA 94707
Telephone: (510) 528-6863
MATTHEW H. BURROWS
THOMAS C. LEE
Counsel of Record
OFFICE OF THE
GENERAL COUNSEL
300 Lakeside Drive, 23rd Fl.
P. O. Box 12688
Oakland, CA 94604-2688
Telephone: (510) 464-6037
[email protected]
Counsel for Amicus Curiae
San Francisco Bay Area Rapid Transit District
================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
TABLE OF CONTENTS
Page
INTEREST OF AMICUS CURIAE ......................
1
SUMMARY OF ARGUMENT ..............................
5
ARGUMENT ........................................................
7
I.
II.
The Sixth Circuit’s Decision Correctly
Found Michigan’s Proposal 2 Unconstitutional Based Upon The “Political Process”
Aspect Of Equal Protection .......................
7
Prop 209 Has Created “Dual Track”
Contracting Policies In California; Experience Shows That Completely “Colorblind” Contracting Policies Fail To Create
Adequate Opportunities For MinorityOwned Businesses ..................................... 13
CONCLUSION..................................................... 17
ii
TABLE OF AUTHORITIES
Page
CASES
City of Richmond v. Croson, 488 U.S. 469
(1989) .......................................................................11
Coalition for Economic Equity v. Wilson, 122
F.3d 692 (9th Cir. 1997) ........................ 6, 8, 9, 12, 13
Coalition to Defend Affirmative Action v. Regents of the University of Michigan, 701 F.3d
466 (6th Cir. 2012) ............................................3, 7, 8
Coral Construction, Inc. v. City and County of
San Francisco, 50 Cal.4th 315 (2010) ......................9
Grutter v. Bollinger, 539 U.S. 306 (2003) ............3, 4, 5
Hunter v. Erickson, 393 U.S. 385 (1969) ...............7, 13
Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971) .........................................10
Washington v. Seattle School District No. 1,
458 U.S. 457 (1982) ....................................... 7, 11, 13
CONSTITUTIONAL PROVISIONS
Cal. Const., Art. I, § 31 .................................................3
Cal. Const., Art. I, § 31(e) .............................................5
1
INTEREST OF AMICUS CURIAE1
San Francisco Bay Area Rapid Transit District
(BART) is a rapid transit district comprised of the
Counties of San Francisco, Contra Costa and Alameda,
created and existing under California Public Utilities
Code sections 28500 et seq. BART provides rapid
public transit to the millions of people who live and
work in the Bay Area, as well as to the many hundreds of thousands of visitors from all over the world
who come each year for business and pleasure. Because of its relatively large capital budget, BART is in
a unique position to evaluate the effects of prohibitions on race- or gender-conscious public contracting
policies such as Michigan’s Proposal 2, at issue in this
case, and the nearly-identical California enactment
known as Prop 209, which governs BART’s publiccontracting responsibilities. Because BART’s experience with Prop 209 has demonstrated that the goals
of encouraging participation of minority and gender
groups in public contracting commensurate with those
groups’ representation in the population are best
advanced by the limited types of race- and genderconscious policies permitted under this Court’s jurisprudence, BART requests leave to file this brief as
1
No counsel for any party authored this brief. No person or
entity, other than amicus curiae San Francisco Bay Area Rapid
Transit District, made a monetary contribution to the preparation or submission of this brief.
All parties have submitted to the Clerk blanket consents to
the filing of all amicus briefs.
2
amicus in support of respondent Coalition to Defend
Affirmative Action, Integration and Immigrant Rights
and Fight for Equality by Any Means Necessary
(BAMN).
BART’s core mission is to provide safe, reliable
and affordable public transit to reduce congestion on
its region’s roads and highways and to improve the
quality of the air in the San Francisco Bay Area.
BART strives to operate, improve and expand its service with that core mission in mind. In pursuing its
core mission, BART provides employment and economic opportunities to local businesses in the areas
of construction, engineering, marketing, telecommunication and many others.
For example, BART’s efforts to extend service to
San Jose and the Livermore valley, and its program
to retrofit its system to better withstand earthquakes,
have pumped more than $360 million into the local
economy in each of the last two years. BART’s contracting for such projects has created opportunities
for businesses owned by minorities or other traditionally disadvantaged groups to participate in this
economic growth.
While federal law permits government entities
such as BART to consider a contractor’s ownership by
disadvantaged and minority persons in awarding
contracts, BART is foreclosed from doing so in
state-funded projects by an amendment to California’s constitution commonly referred to as “Prop 209.”
Prop 209 is quite similar to Michigan’s Proposal 2
3
which is the state enactment under review in this
case. In fact, as the Sixth Circuit noted in its opinion
below, Ward Connerly, a former University of California regent, was instrumental in the passage of both
Prop 209 and Michigan’s Proposal 2. Coalition to
Defend Affirmative Action v. Regents of the University
of Michigan, 701 F.3d 466, 471 (6th Cir. 2012). Like
Proposal 2, Prop 209 generally prohibits state and
local governments from “discriminat[ing] against, or
grant[ing] preferential treatment to, any individual
or group on the basis of race, sex, color, ethnicity or
national origin.” Cal. Const., Art. I, § 31.
Prop 209 was enacted by the people of California
based on a noble principle that few would question:
that all persons are created equal, and that there
should be no discrimination based on race or other
immutable characteristics. But as this Court has
recognized, the effects of past discrimination cannot
be removed merely through legislative or constitutional pronouncements of equality and the passage of
laws prohibiting discrimination. Those affected by
discrimination must be given opportunities to catch
up and to redress the historical disadvantages they
faced, the effects of which continue to affect them
today. That is why this Court has found that, in limited circumstances, race-conscious public policies are
constitutionally permissible.2 See generally Grutter v.
Bollinger, 539 U.S. 306 (2003).
2
Throughout this brief, we use the term “race-conscious” or
“gender-conscious” to describe government policies that grant
(Continued on following page)
4
BART is proud of its role as the premier public
transportation system in the San Francisco Bay Area
and of its support of opportunities for the diverse
population it serves. Prop 209 limits BART’s ability
fully to support and promote the economic and social
interests of those in its community, just as Michigan’s
Proposal 2 limits universities in that state in their
efforts to promote higher education for all deserving
students. BART submits this brief as amicus in
support of respondents because this Court’s decision
to uphold the ruling below will speak loudly against
the continuing validity of Prop 209.
There is, in addition, a very practical reason for
BART’s interest in this case. Because of Prop 209,
BART is forbidden from using any race- or genderbased criteria to award contracts financed solely by
state funds. Under federal contracting rules, however,
BART is generally required to show that a certain
percentage of the work has been awarded (or at least
made available) to contractors owned by women or
minorities, groups who have traditionally not been
well-represented in public contracts. Thus, BART has
one set of contract rules for projects funded by the
state, but must use a different, incompatible set of
certain limited types of preferences to persons in receiving government benefits based on their race, ethnicity, gender or color.
Race- or gender-conscious policies are those which pass constitutional muster under this Court’s jurisprudence, particularly
Grutter.
5
rules for federally-funded contracts.3 This not only
creates administrative difficulties, but, more important, ensures that BART and other public entities in
California adhere to two different standards for antidiscrimination. It is anomalous, to say the least, that
the constitutional protection guarantee of equal protection should mean one thing on state projects and
another on federal projects in the same jurisdiction.
BART believes that the limited race- and genderconscious practices permitted under Grutter best
serve the ends of equal protection, and that it is this
Court’s responsibility to resolve the conflict between
California (and now Michigan) law and that of the
United States in favor of the federal rule.
------------------------------------------------------------------
SUMMARY OF ARGUMENT
The Sixth and Ninth Circuits have reached
differing conclusions regarding the constitutional
permissibility of state prohibitions on race- or genderconscious public policies, including those governing
the award of public contracts and those governing
university admissions. The Sixth Circuit has found
that Michigan’s Proposal 2 is unconstitutional based
upon the “political process” aspect of equal protection.
3
Prop 209 has an exception allowing race-conscious policies
where they “must be taken to establish or maintain eligibility
for any federal program, where ineligibility would result in a
loss of federal funds to the State.” Cal. Const., Art. I, § 31(e).
6
The Ninth Circuit has found that California’s Prop
209, nearly identical to Proposal 2, does not violate
the Equal Protection Clause.
BART contends that the Ninth Circuit’s analysis
depends crucially upon the assumption that race- or
gender-conscious policies are not properly described
as “antidiscrimination” laws. Only by making such an
assumption could the Ninth Circuit assert that Prop
209 does “not isolate race or gender antidiscrimination law from any specific area over which the state
has delegated authority to a local entity.” Coalition
for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir.
1997). But that assertion is plainly false – the limited
types of race- and gender-conscious policies permitted
under this Court’s jurisprudence are antidiscrimination laws. And, once such laws are properly characterized, it is obvious that state action that forbids
proponents of these types of policies, and only these
types of policies, from enacting their preferences by
any method but a statewide referendum, while those
wanting to enact other types of preferences (such as
those for the disabled or veterans) are not so limited,
constitutes a denial of equal protection under the
“political process” doctrine.
BART’s experience with Prop 209 has demonstrated as well that, laudable as the goals of that
enactment (and Proposal 2) may be, they have had
the practical effect of perpetuating the race and gender imbalances that have plagued public contracting
(and university admissions) for many years. It is
ignoring reality to contend, as the proponents of Prop
7
209 and Proposal 2 have contended, that prohibitions
on race- or gender-conscious public policies can better
advance the goals of nondiscrimination.
------------------------------------------------------------------
ARGUMENT
I.
The Sixth Circuit’s Decision Correctly Found
Michigan’s Proposal 2 Unconstitutional
Based Upon The “Political Process” Aspect
Of Equal Protection.
The case before the Sixth Circuit involved admissions policies for Michigan’s public universities, but
the principles of that decision apply equally in the
areas of government contracting opportunities provided by public entities such as BART. The Sixth
Circuit held that Michigan’s Proposal 2 violated the
Equal Protection Clause because it had a racial focus
and “reallocate[ed] political power or reorder[ed] the
decisionmaking process in a way that place[d] special
burdens on a minority group’s ability to achieve its
goals through that process.” Coalition to Defend Affirmative Action, 701 F.3d at 477. The court concluded
that the so-called “political process” aspect of equal
protection – derived from this Court’s holdings in
Washington v. Seattle School District No. 1, 458 U.S.
457 (1982) and Hunter v. Erickson, 393 U.S. 385 (1969)
– rendered Proposal 2 unconstitutional. 701 F.3d at
489.
The Sixth Circuit concluded Proposal 2’s prohibition on race- or gender-conscious admissions practices
8
had the practical effect of making it more difficult for
persons advocating for such admissions policies to
enact their preferences compared to persons who
sought special or preferential treatment for any other
discrete group, such as veterans, the disabled or (in
the university admissions context) alumni status. As
Judge Cole, author of the majority decision, put it, a
student who wished to “have her family’s alumni
connections considered in her application to one of
Michigan’s esteemed public universities” had a variety of possible venues – ranging from lobbying the
admissions committee or the school’s governing board
to initiating a statewide campaign – in which to express her political preferences. Coalition to Defend
Affirmative Action, 701 F.3d at 470. Those advocating
for constitutionally-permissible race-conscious admissions policies, on the other hand, could do so only by
convincing a majority of the state’s voters to repeal
Proposal 2. Id.
By contrast, when Prop 209 was challenged in
the federal courts, the Ninth Circuit rejected the notion that, by taking away the power of local government entities (including BART) to engage in the
limited race-conscious preferences permitted under
this Court’s jurisprudence, the State of California had
violated the political-process aspect of the Equal Protection Clause. Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997). The Ninth Circuit
founded this rejection upon its assertion that Prop
209 did “not isolate race or gender antidiscrimination
9
law from any specific area over which the state has
delegated authority to a local entity.” Id. at 707.4
BART contends that the Sixth Circuit’s analysis
of this issue is correct, and that the Ninth Circuit is
mistaken in its assertion that prohibition of all raceconscious decisions by public entities “does not isolate
antidiscrimination laws” from the normal political
process.
The Ninth Circuit’s analysis depends crucially
upon drawing a distinction between race-conscious
public policies and antidiscrimination laws more generally. As noted, the panel opinion asserts that when
a state prohibits all its instruments from discriminating against or granting preferential
treatment to anyone on the basis of race or
gender, it has promulgated a law that addresses in a neutral-fashion race-related and
gender-related matters. It does not isolate
race or gender antidiscrimination laws from
any specific area over which the state has
delegated authority to a local entity.
Id. at 707.
But the mere assertion that Prop 209 (or Proposal 2) does not bar certain types of antidiscrimination
laws is insufficient to justify state action that makes
4
The California Supreme Court adopted the Ninth Circuit’s
treatment of the political-process issue in turning back a challenge to Prop 209 in 2010. See Coral Construction, Inc. v. City
and County of San Francisco, 50 Cal.4th 315, 331-32 (2010).
10
it more difficult to enact race- or gender-conscious
policies. The implicit assumption that race-conscious
school admissions practices or contracting guidelines cannot constitute “antidiscrimination” laws is
plainly incorrect. For an obvious example, this Court
has on numerous occasions recognized that “affirmative action” programs that are explicitly race-based
may be an appropriate response in jurisdictions that
have a history of de jure segregation. E.g., Swann v.
Charlotte-Mecklenburg Board of Education, 402 U.S.
1, 28 (1971). Such programs are explicitly raceconscious and undeniably “antidiscrimination laws.”
It is incorrect – or disingenuous – to assert that
constitutionally-permissible race-conscious policies are
not “antidiscrimination laws.”
The type of race-conscious policies pursued by the
Michigan university defendants/respondents in this
case, as well as the race-conscious policies that BART
pursues when it uses federal contracting guidelines,
are likewise antidiscrimination laws. Such laws
are intended to help remedy the discrimination that
women and certain minorities have historically
suffered. It is an indisputable fact that minority- and
women-owned businesses receive far fewer public
contracts than could be expected in the absence of
discrimination. That is why this Court has recognized
that, in limited circumstances, programs that encourage minority- and women-owned businesses to learn
about and participate fairly in public contracts are
constitutionally permissible. Such programs are meant
to “assur[e] that public dollars, drawn from the tax
11
contributions of all citizens, do not serve to finance
the evil of private prejudice.” City of Richmond v.
Croson, 488 U.S. 469, 492 (1989).
Because this Court has recognized that some
programs which are narrowly tailored to address the
imbalances created by historical discrimination –
whether de jure or de facto – are permissible under
the Constitution, it is pure sophistry to presume, as
the Ninth Circuit did, that prohibitions on such raceor gender-conscious policies do not implicate the goals
of antidiscrimination law.
Once it is shown that constitutionally-permissible
race-conscious policies are intended to address discrimination – are, in fact, antidiscrimination laws or
policies – the compelling force of the Sixth Circuit’s
decision in this case is obvious. What Proposal 2 did
in Michigan (similar to Prop 209 in California) was to
ensure that persons who wished to urge the state and/
or its subordinate entities to allow constitutionallypermissible race-conscious policies could only accomplish their goal by persuading a statewide electorate
to change the state constitution. Persons who wished
to urge the state and subordinate entities to adopt
admissions or contracting policies that might favor
other groups – such as veterans or the disabled –
could pursue their policy goals at a local level. Proposal 2 (and Prop 209) “removes the authority to
address a racial problem – and only a racial problem
– from the existing decisionmaking body.” Seattle, 458
U.S. at 468.
12
Moreover, the hollowness of the Ninth Circuit’s
analysis of Prop 209 also becomes obvious once the
“antidiscrimination” purpose of race-conscious policies is admitted. Perhaps the most important point in
the Ninth Circuit’s holding is buried in a footnote in
its opinion. There, the court asserted that there was
no problem with state action in banning only certain
types of preferences because the persons who wished
to advocate for those preferences still had the option
of advocating for other types of preferences. As the
court put it, “[i]f the state ever prohibited women and
minorities from seeking preferences on a basis available to everyone else, such as age, disability, or veteran status, the state would violate Proposition 209’s
prohibition against race or gender discrimination.”
Coalition for Economic Equity v. Wilson, 122 F.3d at
708 n. 17.
To call this point disingenuous is overly generous.
No one has ever argued that Prop 209 (or Proposal 2)
prohibited certain classes of persons from participating in the political process completely. Rather, the
point is that these state constitutional amendments
took an entire category of preferences – those based
on gender or race – out of the hands of local electorates, while leaving other categories, such as those
based on age or disability, in those hands. The Ninth
Circuit nowhere faces up to the question why it is
permissible to single out the categories based on race
and gender from other categories that may be considered in admissions and public contracting.
13
In Hunter and Seattle, this Court properly recognized that no state may encourage invidious discrimination by placing obstacles to political participation
by persons who wish to have the state or its local
entities enact constitutionally permissible race- or
gender-conscious policies. Proposal 2, like Prop 209,
does precisely that. Each measure “deprives the proponents of affirmative action – and only the proponents of affirmative action – of the ordinary benefits
of representative government.” Coalition for Economic
Equity, 122 F.3d at 712 (Schroeder, J., dissenting
from denial of rehearing en banc).
II.
Prop 209 Has Created “Dual Track” Contracting Policies In California; Experience
Shows That Completely “Color-blind” Contracting Policies Fail To Create Adequate
Opportunities For Minority-Owned Businesses.
The mischief created by Proposal 2 and Prop 209
go beyond the issue of whether a state may single out
particular types of preferences in admissions or public contracting for different treatment in the political
sphere. In the case of Prop 209, at least, experience has
shown that prohibiting constitutionally-permissible
race- or gender-conscious policies has resulted in
“backsliding” among the groups those policies were
intended to advance.
As noted, the existence of Prop 209 has created a
“dual track” set of contracting policies for BART. On
projects funded wholly or partly by federal funds,
14
BART follows a set of contracting rules that require
general contractors to seek out and employ subcontracting firms owned by traditionally-disadvantaged
minorities and/or women (these sub-contractors are
collectively known as DBEs – disadvantaged business
enterprises) or demonstrate good faith efforts to do so.
General contractors who cannot show either significant DBE participation (“significant” varying by
the type of sub-contract involved), or unsuccessful attempts to secure DBE participation, may fail to meet
the necessary qualifications to enable them to receive
contracts from BART.
On projects funded wholly by the state, on the
other hand, BART is prohibited by Prop 209 from
using any race- or gender-based criteria in evaluating
a bid. BART can only encourage general contractors
to use DBE subcontractors in proportion to their
availability in the market.
This two-track contracting process is, in a sense,
a natural experiment in determining whether completely color- and gender-blind contracting policies
can address or remedy the historical discrimination
women and minorities have faced. The results have
not been encouraging.
One way of determining whether DBEs have
been able to participate in state-sponsored projects in
a manner roughly equivalent to those in federallysponsored projects is to compare the actual subcontractors and their dollar participation in the two
types of projects.
15
Thus, in BART’s fiscal year 2013, BART awarded
ten contracts totaling $15,523,410 in federally-funded
contracts where race- and gender-conscious policies
are required. In that same period, BART awarded
eight contracts totaling $19,412,837 in statesponsored projects, where Prop 209 bars such policies. The DBEs who participated in the federallysponsored projects received 13% of the total money
awarded. In state-sponsored projects, however, that
same pool of DBEs received 4% of the total awards,
less than 1/3 of the proportion received in federallysponsored projects.
The disparity in DBE participation between stateand federally-sponsored projects cannot be attributed
to a lack of qualifications among DBE sub-contractors.
The qualifications of the DBE sub-contractors used in
federally-funded projects had to be approved by BART
when those entities were named as possible subcontractors by the general contractors. There is no
reason that same pool of sub-contractors could not
receive roughly the same proportion of the subcontracts in state-sponsored projects requiring similar, if not identical, work experience and performance.
In short, the disparity in numbers between DBEs
participating in state and federal projects can only be
attributed to the fact that general contractors in
state-sponsored projects have no incentive to promote
DBE sub-contractors and, as a result, simply rely
upon the “old boy network.” In other words, despite
its lofty goals, Prop 209 has had the effect of reinforcing the entrenched barriers to participation in public
16
contracts that race- and gender-conscious policies
were intended to remove.
Given that Prop 209 (and, presumably, Proposal
2) has not had the “enlightened” effect its proponents
had hoped, the notion that barring race- or genderconscious policies is an effective means of ensuring
“nondiscrimination” in public policies is disingenuous,
at best. Prop 209 has helped to ensure that those
whose voices traditionally were not heard in public
choices will remain unheard. Indeed, given that
persons who wish to enact race- or gender-conscious
policies – policies that are constitutionally permissible under this Court’s jurisprudence – are barred
from using the traditional modes of enacting such
policies under both Prop 209 and Proposal 2, the
equal protection analysis of the Sixth Circuit in this
case appears to have a compelling force.
------------------------------------------------------------------
17
CONCLUSION
For the foregoing reasons, amicus curiae BART
urges this Court to affirm the judgment of the Sixth
Circuit.
Respectfully submitted,
JOSEPH A. HEARST
MATTHEW H. BURROWS
THOMAS C. LEE
Counsel of Record
OFFICE OF THE GENERAL COUNSEL
Counsel for Amicus Curiae
San Francisco Bay Area Rapid Transit District