# Dawn v. State Personnel Board

> California Court of Appeal · April 4, 1979 · 91 Cal. App. 3d 588

URL: https://www.frixlaw.com/law-library/cases/9723887

## Case

- **Full name:** JOHN DAWN, Plaintiff and Appellant, v. STATE PERSONNEL BOARD, Defendant and Respondent
- **Court:** California Court of Appeal
- **Decided:** April 4, 1979
- **Citations:** 91 Cal. App. 3d 588; 154 Cal. Rptr. 186; 20 Empl. Prac. Dec. (CCH) 30,007; 19 Fair Empl. Prac. Cas. (BNA) 1030; 1979 Cal. App. LEXIS 1602
- **Precedential status:** Published
- **Opinion:** Concurrence by Paras
- **Judges:** Regan, Paras, Puglia
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9723887

## Opinion text

PARAS, J.,
Concurring. — The lead opinion is correct and its reasoning sound. I fully concur. I render this separate opinion only to emphasize my reasons for the belief that while the constitutional precepts embraced by the dissent are and ever should be sacred, they do not forbid the action taken here. They do however forbid anything more, for I see the preference accorded Khan as the outer limit of governmental favoritism permitted by equal protection guarantees. Anything more than a preference applied where, and only where, there is full and true objective equality of qualification is abhorrent to the Constitution and to the democratic ethic therein proclaimed.
The term “affirmative action” has entered our common parlance in the wake of the struggle of the past 30 years to eliminate racial (and other) discrimination in employment, education, housing, travel, etc. Although the frequent topic of discussion, the term is rarely defined in advance so as to fbrqi a common base for intelligent discourse. This lack of definition (sometimes perhaps deliberate, as pointed out in the lead opinion) is responsible for much of the confusion, misunderstanding, and disagreement regarding the subject. I deem it essential to any sensible discussion of affirmative action that the term first be defined._
*594 Two types of affirmative action have manifested themselves, one benign (cf. Bakke v. Regents of University of California (1976) 18 Cal.3d 34, 48, fn. 12 [ 132 Cal.Rptr. 680 , 553 P.2d 1152 ]), the other malignant.
Benign affirmative action is embodied in the legislative declaration underlying official affirmative action programs in California. In part, section 1 of Statutes 1977, chapter 943, declares:
“(b) It is the policy of the Legislature to encourage the state civil service system to utilize to the maximum all available human resources to provide equal employment opportunity to all persons without regard to race, color, religion, national origin, political affiliation, sex, age, or marital status; and, insofar as possible, to achieve and maintain a work force in which are represented the diverse elements of the population of the State of California.
“(c) Beyond assurances of nondiscrimination, it is the policy of the State of California to have each state hiring unit initiate comprehensive written affirmative action programs which will take steps to remedy any disparate staffing and recruitment patterns.
“(d) This equal employment opportunity policy is adopted to insure that maximum utilization of human resources occurs, that true equality of opportunity is a reality with the State of California, and that the rights of all employees and applicants are safeguarded.” (Italics added.)
Detailed statutory provisions involving affirmative action are also to be found elsewhere throughout California’s laws (see Gov. Code, § 19790 et seq.; Gov. Code, § 50085.5; Gov. Code, § 19701 et seq.; Gov. Code, § 19400 et seq.; Lab. Code, § 1411 et seq.). A further definition is provided in Labor Code section 1413, subdivision (g), which reads: “ ‘Affirmative actions’ means any educational activity for the purpose of securing, greater employment opportunities for members of racial, religious, or nationality minority groups and any promotional activity designed to secure greater employment opportunities for the members of such groups on a voluntary basis.” 1 (Italics added.)
It will be noted from a careful study of the above statutes that the legislative objective is to do everything possible to train, educate, counsel, *595 assist, and encourage members of minorities to become qualifiedfor and to accept positions of employment so as to increase their overall participation therein. The key word is “opportunity” and the focus is upon its continual enlargement. It is noteworthy, however, that with one minor exception, 2 throughout all the legislation on the subject there is nowhere to be found any trace of a statutory undertaking to reject objectively better qualified persons in favor of others less qualified. California does not officially countenance such action.
Benign affirmative action of this type is universally applauded. It offends no one and violates no rights. It promotes pride of achievement, avoids resentment, and in due course accomplishes the objective of making a reality of the true equal opportunity ideal.
Malignant affirmative action on the other hand is to be universally condemned by all fairminded people. It occurs where persons objectively better qualified are pushed aside in favor of others less qualified, for no other reason than their sex or minority status. Affirmative action of this sort is but a euphemism for precisely the same invidious and shameful activity which brought about the great reforms of the past three decades, and which now seemingly is in turn demanded by many of those whom it originally victimized. Such affirmative action was held unconstitutional in Bakke, supra, 18 Cal.3d 34 , for reasons eloquently and irrefutably set forth in the exemplary opinion of Justice Mosk.
Indeed, the equal protection provisions of both the state and federal Constitutions recognize no “chosen people,” be they female, male, white, black, oriental, Indian, or members of that most nebulous and abuse-provoking category of all, “Spanish-surnamed Americans.” 3 The word “equal” cannot but have the same meaning under all circumstances, unaffected by the numerical quantity of persons involved. (See Bakke, supra, 18 Cal.3d at p. 53 .) It would be the worst kind of irony to have *596 spent so many years righting past discriminations violative of equal protection and to now undertake consciously to impose them in the name of righting past wrongs. 4 Inherent in a system which officially prefers any group over another is the corruption, and ultimate destruction, of this cardinal principle. 5
I view the action of the board here as simply responsive to the benign affirmative action objectives of our statutory law. The existence vel non of equality of qualification is a question of fact to be determined by a factfinder. That was done here in accordance with traditional factfinding principles. The record discloses no reason to believe that such determination was not made in good faith or on substantial evidence. As a reviewing court, we have no cause to interfere with it.
Given therefore the propriety of the finding of equality of objective qualifications, we simply do not have a constitutional issue. The final selection could have been made by drawing straws, without emotionally or legally offending either candidate; the use of a benign affirmative action policy to break the tie is surely no less appropriate. Were we to uphold Dawn’s claim, we would in effect give to him the very preference he condemns because accorded administratively to Khan; yet he is no better qualified for the higher position than she, and thus asks us to bestow the fortuitously available advantage upon him, to her consequent disadvantage. Under the circumstances, the preference to either of the two is of whimsical, not constitutional, significance. No rights have been infringed and no legal impropriety perpetrated.
Although women are not expressly listed as a minority category in Labor Code section 1413. they are well within the spirit of the statute. That subject of course is expressly addressed by article I, section 8 of the California Constitution.
I find that exception in a 1978 amendment (Assem. Bill No. 2495) to Government Code section 9124. which deals with “restoration or rehabilitation of the west wing of the State Capitol.” The amendment expressly condones a provision of the prime contract for work on the Capitol Building in Sacramento imposing a quota requirement on the award of subcontracts in favor of “Blacks. Spanish-surnamed Americans, Orientals, and American Indians.” (See Department of General Services v. Superior Court (1978) 85 Cal.App.3d 273, 278 . 281 [ 147 Cal.Rptr. 422 ].)
I know a woman named Campos, who is of English, Italian, and Swedish ancestry, and who owes her Spanish surname to a former marriage. I know another of true Hispanic ancestry, formerly surnamed Jiminez, who now bears a Nordic surname as a result of marriage. The variations on the theme of who has and who has not a “Spanish” surname, and why. are endless.
Nor can a racial or sex preference be disguised successfully by such methods as a declaration that the sole standard for selection is merit, but minority status itself constitutes a measure of merit. (See Bakke v. Regents of University of California (1976) 18 Cal.3d 34,47-48 [132 Cal.Rptr: 680, 553 P.2d 1152 ].)
I do not ignore the line of authority which has upheld minority preference in employment based upon proven past discrimination. (See authorities cited in Bakke, supra, 18 Cal.3d at pp. 57-60; University of California Regents v. Bakke, 438 U.S. 265, 301-307 [ 57 L.Ed.2d 750, 778-782 , 98 S.Ct. 2733 ] opn. of Powell, J.) But whether permissible or not under the federal Constitution, I find such preferences repugnant to article I, sections 7, subdivisions (a), (b) and 8 of our California Constitution. (See People v. Pettingill (1978) 21 Cal.3d 231, 247-248 [ 145 Cal.Rptr. 861 , 578 P.2d 108 ]; Serrano v. Priest (1976) 18 Cal.3d 728, 760-769 [ 135 Cal.Rptr. 345 , 557 P.2d 929 ].)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9723887. Public record. Not legal advice.