# CORAL CONSTRUCTION, INC. v. City and County of San Francisco

> California Supreme Court · August 2, 2010 · 50 Cal. 4th 315

URL: https://www.frixlaw.com/law-library/cases/9796428

## Case

- **Full name:** CORAL CONSTRUCTION, INC., Plaintiff and Respondent, v. CITY AND COUNTY OF SAN FRANCISCO Et Al., Defendants and Appellants; SCHRAM CONSTRUCTION, INC., Plaintiff and Respondent, v. CITY AND COUNTY OF SAN FRANCISCO Et Al., Defendants and Appellants
- **Court:** California Supreme Court
- **Decided:** August 2, 2010
- **Citations:** 50 Cal. 4th 315; 113 Cal. Rptr. 3d 279; 235 P.3d 947
- **Precedential status:** Published
- **Opinion:** Concurrence by Corrigan
- **Judges:** Werdegar, Corrigan, Moreno
- **Cited by:** 111 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/9796428

## How later opinions describe it (automated extraction)

- noting that the United States Supreme Court has "approvingly referred to [California's Proposition 209] as a step in [the] direction" of ending the "governmental use of race" (citing Grutter, 539 U.S. at 342, 123 S.Ct. 2325)

## Opinion text

CORRIGAN, J., Concurring.
I concur fully in the judgment affirming the Court of Appeal’s decision. I write separately to set out an alternative ground for distinguishing the “political structure” cases, particularly Washington v. Seattle School Dist. No. 1 (1982) 458 U.S. 457 [ 73 L.Ed.2d 896 , 102 S.Ct. 3187 ] (Seattle), where the high court gave its broadest explanation of that equal protection doctrine. As the majority opinion explains, the Seattle court held that a statewide initiative measure prohibiting busing for the purpose of *339 school integration violated the equal protection clause by singling out this racial issue and removing it from local control, “requir[ing] those championing school integration to surmount a considerably higher hurdle than persons seeking comparable legislative action.” (Seattle, at p. 474; see maj. opn., ante, at p. 329.)
Here, the City and County of San Francisco (City) contends that article I, section 31 of the California Constitution (section 31) similarly burdens minority interests, by imposing a statewide ban on racial or gender preferences in public contracting. The majority opinion reasons that the busing program at issue in Seattle was understood by the court in terms of equal educational opportunity, not racial preferences. Therefore, the majority concludes, Seattle’s holding does not extend to racial preferences, which are presumptively unconstitutional under subsequent United States Supreme Court decisions. (Maj. opn., ante, at pp. 330-332.)
I am not sure this distinction goes far enough. Affirmative action programs always purport to ensure equal opportunity. The City may fairly claim that its contracting ordinance is meant to provide minority businesses with equal access to City contracts. (See maj. opn., ante, at pp. 323-325.) Conceivably, it could rewrite the ordinance to avoid any mention of preferences, yet awards of public contracts to minority businesses in the name of equal opportunity would be no less burdensome to other businesses that lost contracts as a result. 1 Whether a government benefit is awarded on the basis of a “preference” or a requirement of “equal treatment” is largely a matter of semantics.
I am, however, convinced that Seattle does not apply in this case for additional reasons. The Seattle court made it plain that it was most concerned about the anti-busing initiative’s narrow focus on the racial aspect of school assignments: “[W]hen the political process or the decisionmaking mechanism used to address racially conscious legislation—and only such legislation—is singled out for peculiar and disadvantageous treatment, the governmental action plainly ‘rests on “distinctions based on race.” ’ [Fn. omitted.] James v. Valtierra [(1971)] 402 U.S. [137,] 141 [ 28 L.Ed.2d 678 , 91 S.Ct. 1331 ], quoting Hunter v. Erickson [(1969)] 393 U.S., [385,] 391 [ 21 L.Ed.2d 616 , 89 S.Ct. 557 ]. And when the State’s allocation of power places unusual burdens on the ability of racial groups to enact legislation specifically designed to overcome the ‘special condition’ of prejudice, the governmental action seriously ‘curtail[s] the operation of those political processes ordinarily to be *340 relied upon to protect minorities.’ United States v. Carolene Products Co., 304 U.S. 144, 153, n. 4 [ 82 L.Ed. 1234 , 58 S.Ct. 778 ] (1938). In a most direct sense, this implicates the judiciary’s special role in safeguarding the interests of those groups that are ‘relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.’ San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 28 [ 36 L.Ed.2d 16 , 93 S.Ct. 1278 ] (1973).” ( Seattle, supra, 458 U.S. at pp. 485-486, italics omitted; see also id. at p. 474 [“The initiative removes the authority to address a racial problem—and only a racial problem—from the existing decisionmaking body, in such a way as to burden minority interests.”].)
Section 31 does not implicate this concern. It does not single out racial issues or racially oriented legislation for special treatment. It applies broadly to discrimination or preferential treatment “on the basis of race, sex, color, ethnicity, or national origin.” (§31.) The inclusion of gender among the affected groups is particularly important, because it significantly broadens the application of the measure. The voters did not focus on a politically powerless racial minority, making it uniquely difficult for that group to achieve beneficial legislation. To the contrary, they passed a sweeping reform abolishing preferential treatment for a range of groups that includes everyone in the state, in various ways. Both the Ninth Circuit Court of Appeals, when it reviewed the constitutionality of section 31, and the Sixth Circuit, when it passed on the parallel Michigan measure, relied in part on such considerations to distinguish Seattle. (Coalition for Economic Equity v. Wilson (9th Cir. 1997) 122 F.3d 692 , 707 (Wilson); Coalition to Defend Affirmative Action v. Granholm (6th Cir. 2006) 473 F.3d 237, 250-251 .)
Section 31 is also quite different from the narrow antibusing measure struck down in Seattle because it does not take aim at a particular government activity. It applies generally to a wide range of functions, barring discrimination or preferences in “public employment, public education, [and] public contracting.” (§ 31, subd. (a).) As the Seattle court noted, “[w]hen political institutions are more generally restructured . . . ‘[t]he very breadth of [the] scheme . . . negates any suggestion’ of improper purpose.” 2 (Seattle, supra, 458 U.S. at p. 486, fn. 30 .) Section 31 was a sea change in state policy, of a kind not present in Seattle or any other “political structure” case. For the foregoing reasons, I agree with the majority that the “political structure doctrine” does not invalidate section 31.
*341 As alluded to in the majority opinion, the equal protection jurisprudence of the United States Supreme Court has undergone a change similar in scale to the reform enacted by section 31. Where the Seattle court once carefully guarded the prerogative of school districts to pursue desegregation programs, the Parents Involved court recently held that such programs themselves employ presumptively unconstitutional racial classifications and are subject to strict judicial scrutiny. The court has broadly called for a “logical end point” to “all governmental use of race,” and approvingly referred to section 31 as a step in that direction. (Grutter v. Bollinger (2003) 539 U.S. 306, 342 [ 156 L.Ed.2d 304 , 123 S.Ct. 2325 ]; see maj. opn., ante, at p. 332.) The various opinions issued by this court in this case reflect the difficulty of squaring the “political structure doctrine” with modem equal protection jurisprudence. Like the Wilson court, we have been “perplexed” by the persistence of this anachronistic feature of federal constitutional law. (Wilson, supra, 122 F.3d at p. 704; see also id. at p. 705, fn. 13 [noting “seemingly irreconcilable Supreme Court precedent”]; Coalition to Defend Affirmative Action v. Regents of the University of Michigan (E.D.Mich. 2008) 592 F.Supp.2d 948, 951 [noting “unevenness” created by Seattle].) 3
It would be helpful for the United States Supreme Court to clarify matters by directly addressing the continued viability of the “political structure doctrine,” in an appropriate case. The broad statements in Seattle casting suspicion on laws that may be characterized as “special burdens on the ability of minority groups to achieve beneficial legislation” (Seattle, supra, 458 U.S. at p. 467 ), or as attempts to “make[] the enactment of racially beneficial legislation difficult” {id. at p. 483), lend themselves to arguments distinctly at odds with the high court’s own approach to racial classifications in such later cases as Parents Involved. Justice Moreno is correct, of course, when he points out that only the high court can ultimately resolve this tension. (See dis. opn., post, at pp. 366-367.)
As the high court has observed in the equal protection context, “[t]he principle that racial balancing is not permitted is one of substance, not semantics.” (Parents Involved in Community Schools v. Seattle School Dist. No. 1 (2007) 551 U.S. 701, 732 [ 168 L.Ed.2d 508 , 127 S.Ct. 2738 ] (Parents Involved).) Surely the same reasoning applies under section 31.
The quotation in this passage from Seattle was taken from a concurring opinion in Walz v. Tax Commission (1970) 397 U.S. 664, 689 [ 25 L.Ed.2d 697 , 90 S.Ct. 1409 ], a case involving tax exemptions for religious institutions. That opinion also states: “Government may properly include religious institutions among the variety of private, nonprofit groups that receive tax exemptions, for each group contributes to the diversity of association, viewpoint, and enterprise essential to a vigorous, pluralistic society. [Citation.] To this end, New York extends *341 its exemptions not only to religious and social service organizations but also to scientific, literary, bar, library, patriotic, and historical groups, and generally to institutions ‘organized exclusively for the moral or mental improvement of men and women.’ ” (Ibid. (conc. opn. of Brennan, J.).)
Although the context is different, section 31 also extends its reach to a variety of activities and groups.
The high court itself has avoided employing the doctrine, even when its applicability was plain. (Romer v. Evans (1996) 517 U.S. 620, 625-626 [ 134 L.Ed.2d 855 , 116 S.Ct. 1620 ]; see Evans v. Romer (Colo. 1993) 854 P.2d 1270, 1279-1282 .)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9796428. Public record. Not legal advice.