Supreme Court of the United States

Transcription

1 No ================================================================ 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 Telephone: (510) MATTHEW H. BURROWS THOMAS C. LEE Counsel of Record OFFICE OF THE GENERAL COUNSEL 300 Lakeside Drive, 23rd Fl. P. O. Box Oakland, CA Telephone: (510) Counsel for Amicus Curiae San Francisco Bay Area Rapid Transit District ================================================================ COCKLE LEGAL BRIEFS (800)

2 i TABLE OF CONTENTS Page INTEREST OF AMICUS CURIAE... 1 SUMMARY OF ARGUMENT... 5 ARGUMENT... 7 I. The Sixth Circuit s Decision Correctly Found Michigan s Proposal 2 Unconstitutional Based Upon The Political Process Aspect Of Equal Protection... 7 II. Prop 209 Has Created Dual Track Contracting Policies In California; Experience Shows That Completely Colorblind Contracting Policies Fail To Create Adequate Opportunities For Minority- Owned Businesses CONCLUSION... 17

3 ii TABLE OF AUTHORITIES Page CASES City of Richmond v. Croson, 488 U.S. 469 (1989) 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) Washington v. Seattle School District No. 1, 458 U.S. 457 (1982)... 7, 11, 13 CONSTITUTIONAL PROVISIONS Cal. Const., Art. I, Cal. Const., Art. I, 31(e)... 5

4 1 INTEREST OF AMICUS CURIAE 1 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 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.

5 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

6 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)

7 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.

8 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).

9 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

10 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

11 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

12 9 law from any specific area over which the state has delegated authority to a local entity. Id. at 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 See Coral Construction, Inc. v. City and County of San Francisco, 50 Cal.4th 315, (2010).

13 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

14 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.

15 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.

16 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,

17 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.

18 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

19 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

20 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