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Coral Construction v. City and County of San Francisco, California

Two construction companies challenged San Francisco’s Minority and Woman Business Enterprise Ordinance, allowing consideration of race and gender in the awarding of public contracts in the city. The companies argue that the ordinance violates Proposition 209, which prohibits the consideration of race and gender in California contracting, education and employment and is now codified as Article 1, Section 31 of the California Constitution.

San Francisco argued that its race- and gender-conscious public contracting program was enacted only after public hearings and other evidence revealed persistent race- and gender-based discrimination in the awarding of public contracts, and that race-neutral measures did not rectify the problem.

The state trial court granted summary judgment for the construction companies and struck the ordinance down. The court of appeals remanded the matter for the trial court to determine whether the ordinance was required by the U.S. Constitution’s Equal Protection Clause as a remedial measure to remedy discrimination in public contracting.

On August 22, 2007, the California Supreme Court agreed to review the case. MALDEF filed an amicus brief in support of San Francisco, arguing that Article I, Section 31 of the California Constitution improperly disadvantages minority groups and violates equal protection principles by making it more difficult to enact legislation on their behalf. The only alternative for relief from discrimination in public contracting would be to propose a statewide ballot initiative to overturn Proposition 209, placing an undue burden on minority groups in violation of the Equal Protection Clause because statewide ballot initiatives are prohibitively expensive and labor intensive.

The court’s decision will signal whether public entities can adopt affirmative action programs to remedy systemic discriminatory practices. Attorneys from the law firm of Sonnenschein, Nath & Rosenthal, LLP are co-counsel in this case.