By Edward J. Erler Posted December 1, 2000

California's Supreme Court handed down an important decision on Thursday that detailed the reach of the state's ban on race and sex preferences. Proposition 209 was the hotly contested initiative passed in 1996. It prohibited the state from giving preferential treatment "to any individual or group on the basis of race, sex, color, ethnicity, or national origin" in "public employment, public education, or public contracting."

Shortly after the measure passed, San Jose changed the name of its Office of Affirmative Action to the Office of Equality Assurance. Officials then adopted a program that required contractors bidding for city projects to use a specific percentage of minority or women subcontractors or to document efforts to include such contractors.

Hi-Voltage Wire Works, a general contracting firm based near Sacramento, sued the city in 1997 after its bid for a water pollution plant was rejected. No matter that Hi-Voltage was the lowest bidder. The city said Hi-Voltage failed to comply with the law because it claimed it didn't need subcontractors.

After a series of lower court rulings in the company's favor, California's Supreme Court considered the constitutionality of San Jose's ordinance. The case attracted considerable attention; the Clinton Justice Department and California's Attorney General urged the Court to uphold the law against the Proposition 209 challenge.

Proponents argued that the San Jose ordinance wasn't really an affirmative action law, but merely an "outreach program" that did not mandate racial or sex preferences. But the Court was not persuaded by this line. All seven jurists agreed that the law was unconstitutional, although some disagreed about the scope of their decision.

Proposition 209 amended California's Constitution to reflect the original purpose of the Civil Rights Act of 1964: no individual could be discriminated against because of race, ethnicity or sex, nor could anyone be preferred for public benefits based on race, ethnicity or sex.

Justice Janice Brown wrote for the majority in Thursday's decision. She noted that any plain and fair reading of Proposition 209 clearly shows that the San Jose program is unconstitutional. Why? "The participation component" of the program, Brown wrote, "authorizes or encourages what amounts to discriminatory quotas or set-asides, or at least race-and sex-conscious numerical goals."

Thus understood, Justice Brown concluded, "such a goal plainly runs counter to the express intent of the historic Civil Rights Act [of 1964] and, concomitantly, the intent of Proposition 209." The Court rightly concluded that numerical goals based on race and sex make the fantastic assumption that individuals of all races and both sexes will "gravitate with mathematical exactitude to each employer . . . absent unlawful discrimination." Without such "mathematical exactitude," it is assumed that race and sex discrimination must be at work.

But in a free society, mathematical precision in individual choices is impossible. The only way that such precision can be achieved is to extinguish the freedom of individuals to choose their occupations.

Rights belong to individuals, not races. The rule of law cannot condition rights upon race, because the notion that what you deserve in life depends upon your race is wholly arbitrary — indeed it makes a mockery of equal protection. This is what the voters who approved Proposition 209 understood and why the California Supreme Court was correct in striking down San Jose's ordinance.