Calif. AG Jerry Brown Takes Fire for Stance on Affirmative Action Ban

California Attorney General Jerry Brown has come under attack for taking the unexpected step recently of questioning the constitutionality of Proposition 209, the 1996 ballot initiative that eliminated most affirmative action programs in California.

In a letter brief filed with the California Supreme Court late Thursday, the Pacific Legal Foundation condemned Brown’s stance as “political expediency” and accused him of trying to revive programs that are “relics of a long-gone era of racial politics.”

“The attorney general’s current argument would turn the California Constitution on its head,” Sharon Browne, PLF’s principal attorney, said in the 18-page Supreme Court filing, “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 filing was in response to an amicus curiae letter the AG filed with the Supreme Court on April 22, in which he argued that Prop 209 — now section 31, article I of the California Constitution — would violate the Fourteenth Amendment’s equal protection clause if interpreted broadly to bar all “race- or gender-conscious” programs.

Brown’s brief was a response to a request from the high court, which wanted to know whether Prop 209 could violate equal protection principles. The question was raised as part of the court’s review of Coral Construction Inc. v. City and County of San Francisco, S152934, which challenges a San Francisco law that gives women- and minority-owned businesses priority in public contracting awards.

The PLF letter brief points out that 13 years ago, then-AG Dan Lungren defended Prop 209 by taking the position that it doesn’t single out minority preference programs.

“Whatever political expediency might account for this belated about-face,” Browne wrote, “plaintiffs and respondents submit that the former attorney general’s position on the constitutionality of section 31 in 1996 rests on far stronger analysis, and more compelling authority, than the attorney general’s position on the same question in 2009.”

The PLF attorney noted that the California Supreme Court upheld Prop 209 in its 2000 ruling in Hi-Voltage Wire Works Inc. v. City of San Jose, 24 Cal.4th 537, by saying that the initiative doesn’t classify individuals by race or gender, but rather prohibits racial classifications.

“The attorney general’s argument would eviscerate section 31’s prohibition of discrimination by allowing all state and local agencies to adopt racially preferential programs based upon back-room politics and social engineering,” Browne wrote. “Such relics of a long-gone era of racial politics are dispensed with in their entirety by the text of section 31.”

Solicitor General Manuel Medeiros, one of Brown’s top lawyers, defended the AG’s position on the issue.

“Politics had absolutely nothing to do with our position,” he said Friday. “Our position was the unanimous decision of the half-dozen or so civil servant attorneys who looked at the issue, and the attorney general agreed with our analysis.”

Medeiros also noted that the Supreme Court sought the AG’s position.

“When [we’re] asked by the court to respond as amicus curiae , we take our obligation very seriously to look at the law carefully and to give the court our best analysis,” he said. “We are quite comfortable and confident that the position we took is the correct one.”

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