Pacific Legal Foundation Says East Bay Municipal Utility District Imposes Illegal Race and Sex Preferences, Violating Proposition 209

Business Wire, May 8, 2001

Business Editors

SACRAMENTO, Calif.--(BUSINESS WIRE)--May 8, 2001

The East Bay Municipal Utility District (EBMUD), headquartered in Oakland, is violating Proposition 209 (Article I, section 31, of the California Constitution) by imposing race- and sex-based preferences in contracting, four months after the state Supreme Court declared such policies illegal, Pacific Legal Foundation alleged in a letter to the district today.

Proposition 209 is the 1996 ballot initiative that outlawed race- and sex-based preferences by state and local government. It says public entities in California may not "discriminate against or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting."

EBMUD is flouting Proposition 209 in its "Contract Equity Program," Pacific Legal Foundation charged. According to EBMUD's official description of the program (found at www.ebmud.com), it establishes goals or "Contracting Objectives" "defined as the minimum percentage of the total value of a contract which should be represented by businesses" in specific racial and gender groups. The program description, on the EBMUD web site, offers the following example: "When subcontracting opportunities are available, a $200,000 construction contract should have at least 25% ($50,000) for white men owned businesses, 9% ($18,000) for white women owned businesses, and 25% ($50,000) for ethnic minority owned businesses."

"The agency's race- and sex-based 'objectives' or goals are illegal under Proposition 209, which requires that governments show no favoritism by race or sex in any outreach or contracting policies," says Pacific Legal Foundation Principal Attorney Sharon Browne. In a landmark decision last November, the California Supreme Court ruled that Proposition 209 bars not just race and sex quotas, but also race- and sex-targeted "goals." "A participation goal differs from a quota or set-aside only in degree," wrote Justice Janice Rogers Brown in the majority opinion in Hi-Voltage Wire Works v. City of San Jose. "By whatever label, it remains a 'line drawn on the basis of race and ethnic status' as well as sex."

"The people in adopting Proposition 209 have spoken," said PLF's Sharon Browne. "A race- or sex-targeted 'goal' can be as invidious as an outright quota, because it creates an incentive for officials to make contracting decisions based on race or sex. Today, Pacific Legal Foundation is sending the East Bay Municipal Utility District a letter putting it on notice that its race- and sex-based 'objectives' in contracting are illegal under Proposition 209, and urging the district to abandon this illegal policy."

Pacific Legal Foundation is the main defender of Proposition 209 in the courts. In November, 2000, PLF won the landmark Hi-Voltage Wire Works case in the California Supreme Court. This ruling declared that Proposition 209 bars "programs or policies that use racial or gender classifications." PLF has launched OPERATION END BIAS, a drive to identify jurisdictions that continue to violate Proposition 209 and to put them on notice. The toll-free whistleblower number for citizens who know of policies in violation is 1-877-ENDBIAS (363-2427)