When cities have tried to create preferential programs that meet Proposition 209’s strict requirements, their efforts have failed in court. “Although the study revealed disparities in some categories of contracting, there is no evidence of intentional discrimination that would permit the establishment of a program that targets persons with protected characteristics, such as race or gender,” Elliott wrote. In a legal memo issued last summer, she cautioned against creating contracting preferences because the San Diego disparity study didn’t find evidence that “intentional discrimination” played a role in the city’s inequitable outcomes. Proposition 209 outlaws gender or racial preferences in government contracting, but Elliott says such preferences could potentially be OK if they are narrowly tailored and serve a compelling government interest.
Officials say San Diego can carefully tailor preferences to comply with voter-approved Proposition 209. “I believe we owe it to the people to fight for what I believe is right.”įor subscribers San Diego leaders will challenge state law prohibiting race, gender preferences in contracting “I think we all know we need to take this further.”Ĭouncilmember Monica Montgomery Steppe, who has spearheaded the effort to establish preferences in partnership with Campillo, said San Diego must take the legal risk. “A reasonable inference, and in my mind the only reasonable inference, is that Proposition 209 is being violated as we speak,” he said, contending the city is obligated to change a process that has hurt women and people of color. “We have to ask ourselves, ‘How can the data be so skewed?’” he said.Ĭampillo said the spirit of Proposition 209 is an equal playing field for contracts, but the city’s track record shows the playing field has been unequal. “I don’t think you can look at the data, see the disparities and not think there was intent there - unless you think there was something wrong with the folks who were left behind,” Council President Sean Elo-Rivera said.Įstablishing intent will be key to San Diego’s efforts, because Elliott has said preferences can only be legal under Proposition 209 if there is a compelling government interest to them, such as reversing clear evidence of intentional discrimination.Ĭity staff and the authors of the disparity study say there is no evidence that San Diego’s inequitable awarding of contracts is the result of intentional discrimination, but council members disagree.Ĭouncilmember Raul Campillo said many courts have ruled that substantial disparities are evidence of discrimination.
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