April 27, 2009
The Honorable Ronald George
California Supreme Court
Earl Warren Building
350 McAllister St.
San Francisco, CA
Dear Justice George,
In re: Coral Construction vs. San Francisco, S152934
As the Court reviews Coral Construction v. San Francisco, I’d like to expand upon the opinion by the Attorney General that Article 31 (Proposition 209) may violate the Equal Protection Clause of the U.S. Constitution.
I write as editor of Our Roots Run Deep: the Black Experience in California, Vols. 1-4, a 1,400 page chronicle of the central role of African-Americans in the Golden State from the 1500s to the present era.
Additionally, I’m author of the six annual State of Black Business reports, which have classified California as the most unfriendly state in the nation to African-American businesses.
In 2007, I was commissioned by the Coalition to study the Impact of Proposition 209 to present Compelling State Interest: California After Proposition 209, a ten-year analysis of the impact of the law on the state’s African-American population.
As the owner of an African-American-owned business which has attempted to carry out a contract with the City and County of San Francisco, I believe I also can illustrate, in a way that the trial record does not, the true nature of Proposition 209.
For some reason, the passage–
“Minority contractors observed that, as compared with nonminority contractors, City inspectors imposed more onerous requirements on them, scrutinized their work more closely and treated them more harshly if they made mistakes. For example, while inspectors would waive compliance with certain requirements for majority-owned firms, they forced minority contractors to redo the same work on the same programs, at substantial cost. As well, one minority contractor spoke of being harassed and subjected to racist and derogatory remarks from City inspectors.
Another complained of being subjected to more rigorous background-vetting despite his extensive qualifications and experience.
Upon review of all the materials, the Board made findings of continued discrimination in public contracting and subcontracting against minority- and women-owned businesses” —
has not resonated with the state’s jurists.
As the passage before indicates, the primary impact of Proposition 209 has been to prevent the State of California and its political subdivisions from providing equal protection of the law to African-Americans.
In that respect, it has delivered as promoted by its backers.
In an Oct. 25, 1996 commentary in the San Francisco Examiner, I pointed out that primary supporter Ward Connerly advertised the initiative as a measure to prevent “unqualified minorities” from receiving “preferential treatment.” Because there was no evidence to support any such phenomenon, state and local officials have generally interpreted the law to eliminate any benefits, services or programs geared to underrepresented groups. African-American has been equated with preference.
My own example illustrates how programs which provide disproportionate benefits to white Californians have not met similar scrutiny.
Since 1971, the City and County of San Francisco, the defendant in Coral Construction, has conducted historic preservation activities through its planning code and staff. Although almost 13 percent of the city’s population at the time was African-American, approaching 100,000 in the 1970 Census, the city has never originated an historic preservation study of the African-American community or sites of significance to the African-American community.
This occurred despite an active preservation movement through such groups as Freedom House and Western Addition Community Organization, which fought against redevelopment in the 1950s and 1960s; and the archival activities of the oldest group of its type in the West, the 54-year-old San Francisco African-American Historical and Cultural Society.
Yet the actual practice of qualifying properties and districts for state and federal landmarks has become the province of an insular lily-white group loosely known as “the preservation community.”
By positioning its members in advocacy groups, advisory bodies and policy-making organs, they have defined standards, policies and practices in a way which has caused profound demographic shifts in neighborhoods more consistent with restrictive covenants than preservation.
I am principal investigator for a grant application to conduct a context statement on the African-American heritage in the city. This opportunity emerged immediately after a meeting during which the local African-American Chamber of Commerce presented a study in 2006 to Mayor Gavin Newsom describing the low numbers of African-American businesses in the city.
Our application was not acknowledged for six months by the Mayor’s Office of Economic and Workforce Development. An all-white advisory group was found to violate the city’s Sunshine Ordinance through improper notice of its meetings. Members used a number of procedural tactics, similar to those described in the city’s brief, to drag out the approval of the grant until July 2007. The actual grant agreement was not issued until May 2008, a two-year span from the original application. Despite no public meetings to discuss it, the first monthly payment for the services rendered was delayed until April 2009. The chair of the all-white advisory group refused to place the matter of the late payment on the agenda for more than six months. As a group of African-American non-profits and businesses undertaking the work, we’ve been in the position of having worked for three years, on only one month’s payment despite intervention from the Community Relations Service of the U.S. Dept. of Justice, National Parks Service and State Historical Resources Commission..
Prop. 209 does not fit the following description–
Section 31, with its categorical prohibition of discrimination in the operation of public employment, education and contracting, is consistent with the intent of title VI of the Civil Rights Act to prevent recipients from discriminating on the basis of race, color or national origin in funded activities and programs.”
–because it is not available to African-American plaintiffs facing real discrimination. The only parties with standing are white males represented by Pacific Legal Foundation.
There is no mechanism in San Francisco city government or California state government to address discrimination claims by minority contractors. We wrote the attorney general, city attorney, the city purchaser, the mayor and the directors of the Office of Economic and Workforce Development and Redevelopment Agencies.over the course of that period. Not once did we get a response.
The trial record fails to provide a context for that Section 31-caused gap.
In the annual State of Black Business reports, we analyze the policy environment for black businesses in each of the 50 states. The deficiency of Section 31 on equal opportunity is demonstrated by the practice and policy of the other states, particularly those with comparable demographics.
In Walls Come Tumbling Down: State of Black Business, Sixth Edition, 2009, we provide eight black business success factors which correlate to higher than average rates of black business growth and scale. Using those factors, we rank the states using the black business affinity index.
The trend among states is the opposite of California. Maryland, the top state in the ranking, has a Governor’s Office of Minority Affairs supervising minority business programs in state government, which such programs as a linked deposit initiative which provides a two percent discount on interest rates for certified MBEs. A workshop for minority businesses on the stimulus funding was recently held by its Dept. of Transportation.
The second ranked, Ohio, has eight regional Minority Contractors Business Centers as part of its EDGE (Encouraging Diversity, Growth and Equity) program, which recently held a Minority Business International Trade conference in October 2008. “A key priority of the (Minority Business Enterprise) Division is to increase the level of services statewide that support socially and economically disadvantaged businesses and emerging entrepreneurs in the urban core.”
Virginia, New York, Florida, North Carolina, New Jersey and Texas provide quarterly monitoring of supplier diversity by state and local agencies. Maryland, New York, Pennsylvania, Ohio, Minnesota and Florida provide lending programs for minority businesses.
By contrast, California has ranked as the most unfriendly state to black businesses for each of the past six State of Black Business reports.
In Compelling State Interest, we compared a number of variables for California and Washington, which approved a similar initiative, and Florida, which chose to reject such a measure in 1996.
Both California and Washington experienced declines in black population from 2000 to 2006, according to the U.S. Census Bureau – 9.56% in California and 7.3% in Washington, while Florida experienced an 11.5% growth in its black population. Nationally, there was a 7.5 percent growth in black population from 2000 to 2006. Had the population trend from 1990 to 2000 continued, California would have grown by 494,128 black residents from 2000 to 2010.
In the area of employment, California had a decline of 6,474 black employees from 2000 to 2006. That included a 15,734 decline in Alameda County, 10,693 fewer in Los Angeles County, and 9,132 less in San Diego County.
In the area of education, Alameda, Contra Costa, San Francisco, San Mateo and Santa Clara Counties had 12,000 fewer black college students in 2006 than 2000. Los Angeles and San Diego Counties together lost 12,000 black college students in the same six year span. In Florida, black college attendance rose 22% from 2000 to 2006.
Among black businesses, self-employment among blacks in California has far trailed the trends nationally since 1997. In 1997, Florida had 43,690 black self-employed, according to the Social Security Administration and California had 59,097 black self-employed.
By 2000, Florida had 62,188 and California 66,946.
In 2004, Florida had 96,694 and California had 81,415.
Not only did Florida move from the eighth largest number of black self-employed to the second-largest behind New York, supplanting California, but it also has more the double the number of black construction workers of any other state.
The policies that created that growth included a state-funded venture capital fund, Florida Black Business Development Corp. and quarterly monitoring of procurement supplier diversity, all done during conservative Republican administrations.
The ten-year track record of Article 31 speaks more eloquently than a literal reading of the language. An African-American business seeking to do business with the plaintiff faces an almost insurmountable obstacle course of difficulties. The litany of barriers described by the City Attorney is law-like in its real world application.
As the Hunter/Seattle doctrine holds, African-Americans are significantly disadvantaged by the discriminatory operation of state and local governmental systems. San Francisco has had the largest decline in black population nationally of any major city in the past 15 years.
Another statistic points out how significant that trend is. Both California and Washington had declines in K-12 African-American students exceeding 23 percent from 2000 to 2006. Both California and Washington had declines of 42.8% and 55.4% in African-American pre-primary students from 2000 to 2006.
That means California had 91,546 fewer African-American nursery and kindergarten students than would have been expected in 2006 and 236,486 fewer black K-12 students than would have been expected that year.
It is clear that Article 31 does make it more difficult for African-Americans “to obtain protection from discrimination through the political process.”
The evidence, both anecdotal and statistical, makes the stated purpose of Article 31, the elimination of preferential treatment, so fanciful, so remote, so incredible that the only appropriate reference should be 5150.
The historical antecedent to Prop. 209 is the right of testimony law of 1851. It took a dozen years before Gov. Leland Stanford signed the law to strike down the prohibition on voting for Negroes, Indians and Orientals.
Comer Lawrence Dellums began in the 1920s his work to bring the 1959 civil rights law into legislation. The fiftieth anniversary of that accomplishment would be an appropriate milestone to remove the stain of Proposition 209 from the California Constitution.