January 22, 1999

City's Preferences For Minorities, Women Challenged Under Prop. 209

By Bob Egelko

SAN FRANCISCO - Preferences for minorities and women in San Francisco city contracts were challenged in court Tuesday by a salesman for a white male-owned contractor that wasn't allowed to bid on a city project.

The Superior Court suit, filed by the Pacific Legal Foundation, accuses San Francisco of violating Proposition 209, the 1996 initiative that prohibited state and local government preferences based on race or sex.

A San Francisco ordinance gives companies owned by minorities or women an advantage in bidding for city contracts. Federal courts upheld it after city officials presented evidence of long-standing race and sex discrimination by the city in contracting fields covered by the ordinance.

After passage of Proposition 209, the ordinance was challenged by a contractor that said its low bid for work at San Francisco International Airport was unfairly rejected because it did not show a good-faith effort to hire a certain percentage of minority or female subcontractors.

A Superior Court judge ruled in the city's favor in that case, which is on appeal. Another judge ruled that a somewhat similar ordinance in San Jose violated Proposition 209, a decision that city has appealed. A third suit, filed by then-Gov. Pete Wilson against state laws on contracting and employment for women and minorities, is also on appeal after a mixed ruling by a Sacramento judge.

The latest suit, filed Friday, is narrower. It challenges only a provision of the ordinance that reserves certain city contracts for companies owned by women or minorities if discrimination in a particular department has become so rooted that good-faith efforts have failed to eliminate it.

The suit said a white male-owned company, Ford Graphics, was notified by the city last July that it was ineligible to bid on a certain project because the project had been classified as a ``set-aside'' available only to companies owned by minorities, women or local residents, another preferred category.

``Any government policy that outright prohibits certain people from bidding on a contract is, without question, discriminatory and therefore violates Proposition 209's equal protection mandate,'' Pacific Legal Foundation lawyer Mark Gallagher said in a statement.

His clients are a commission salesman for Ford Graphics and three private citizens claiming a waste of tax dollars.

Deputy City Attorney Marc Slavin said the city hadn't seen the suit but was confident that its ordinance was valid.

``We believe that our minority contracting ordinance falls squarely within the constitutional requirement that local jurisdictions correct past and ongoing discrimination,'' Slavin said. ``The ordinance is designed to create a level playing field.''

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