24 Empl. Prac. Dec. P 31,422, 27 cont.cas.fed. (Cch) 80,416 Associated General Contractors of California v. San Francisco Unified School District San Francisco Board of Education, and National Association of Minority Contractors and Minority Contractors Association of Northern California, Intervenors-Appellants. Associated General Contractors of California v. San Francisco Unified School District San Francisco Board of Education, and National Association of Minority Contractors, and Minority Contractors Association of Northern California, Intervenors24 Empl. Prac. Dec. P 31,422, 27 cont.cas.fed. (Cch) 80,416 Associated General Contractors of California v. San Francisco Unified School District San Francisco Board of Education, and National Association of Minority Contractors and Minority Contractors Association of Northern California, Intervenors-Appellants. Associated General Contractors of California v. San Francisco Unified School District San Francisco Board of Education, and National Association of Minority Contractors, and Minority Contractors Association of Northern California, Intervenors
Associated General Contractors (AGC) sued to challenge the “affirmative action policy” adopted by the San Francisco Board of Education (Board). Under the policy, bidders for construction contracts let by the San Francisco Unified School District (School District) must be minority general contractors or must utilize minority subcontractors for 25% in dollar volume of the contract work.1 AGC asserts that this policy violates
The district court held that such a set-aside for minority contractors on public works was illegal, except as to projects funded with federal money given on condition that 10% or more of the money would go to minority contractors. We agree.
I. Statement of the Case
The Board of Education adopted a resolution in March 1977 finding a present need for an affirmative action policy to overcome the effects of past discrimination in the awarding of School District construction subcontracts. The Board then adopted the policy outlined above. It applied to general contractors bidding on all school construction projects worth over $100,000. Reliеf from the policy was available only when the Board was satisfied that an ineligible contractor had “taken every possible measure to comply” with the policy, or that it was “not practicable in the best interests of the District to require compliance in the specific case.”
The policy declared that noncomplying contractors were not “responsible bidders” under
The district court enjoined the School District from enforcing the policy, on the ground that “responsibility” under the state law referrеd only to a bidding contractor‘s financial and physical ability to do the work. The court forbade the School District to award contracts to other than the “lowest responsible bidder” merely because the lowest bidder was of the wrong parentage and refused to accede to the School District‘s views on socially desirable subcontracting. Associated General Contractors v. San Francisco Unified School District, 431 F.Supp. 854 (N.D.Cal.1977) (refusing to dissolve preliminary injunction; permanent injunction entered later).
At about the same time, the federal government granted the School District $8,000,000 in public works funds under the Public Works Employment Act of 1977, Pub.L.No. 95-28,
The Board then adopted a second affirmative action policy, nearly identical to the first (including a minority set-aside of 25%, rather than the federally-required minimum of 10%) except that it applies only to projects financed with Public Works Employment Act funds.
AGC applied for a contempt order to vindicate the earlier injunction. The district court dismissed the proceeding without prejudice. However, it issued an ordеr changing the Board‘s 25% minority participation requirement on federally-aided projects to a 10% requirement. The court then modified its earlier injunction so as not to prohibit the new policy, as altered.
The intervening Minority Contractors appeal from the entry of the permanent injunction against the first affirmative action policy; the School District and the Board appeal from the reduction from 25% to 10% of the set-aside in projects funded through the Public Works Employment Act.
II. Issues
This appeal raises five issues: (1) whether the district court had jurisdiction to test under state law the validity of the Board‘s policy; (2) whether the manner in which the сourt reduced the set-aside on Public Works Employment Act projects violated due process; (3) whether
A. Jurisdiction
The district court had jurisdiction to enter its injunction and order. AGC‘s attacks on the set-aside policy based on the
B. Due Process
The School District and the Board are the only parties appealing the district court‘s downward revision of the minority set-aside in the second affirmative action policy (relating to federally-funded projects). They originally complained that the manner in which this was done deprived them of their due process rights to notice and opportunity to be heard. However, in their reply brief they explicitly “abandoned and dismissed that portion of this appeal which . . . (a)lleges denial of due process on hearing In Re Contempt.”
Even if we did not hold them to this waiver, we would find no due process violation. The effect of what the district court did was to create an exception to the injunction, not to broaden its coverage. The illegality of a 25% set-aside, to the extent not required by federal law, was law of the case; extensive reargument was not required.
C. Authority Under State Law
The district court held that undеr state law the affirmative action program was void because the Board had no authority to adopt it. A federal court‘s role in such a case is to give state laws the construction it believes the highest state court would give them. In this inquiry we give substantial deference to the opinion of a district court sitting in the state. Lewis v. Anderson, 615 F.2d 778, 781 (9th Cir. 1979); Smith v. Sturm, Ruger & Co., 524 F.2d 776, 778 (9th Cir. 1975). We agree with the district court.
The authority of school boards in California derives from
Thе governing board of any school district shall let any contracts involving an expenditure of more than eight thousand dollars ($8,000) for work to be done or more than twelve thousand dollars ($12,000) for materials or supplies to be furnished, sold, or leased to the district, to the lowest responsible bidder who shall give such security as the board requires, or else reject all bids. This section applies to all materials and supplies whether patented or otherwise.
While no California court has considered the issue whether a school board may adopt a program such as the one at issue here consistent with
In Inglewood-Los Angeles County Civic Center Authority v. Superior Court, 7, Cal.3d 861, 500 P.2d 601, 103 Cal.Rptr. 689 (1972), the court held that
We do not think that the California Supreme Court would construe the term “lowest responsible bidder” as used in
D. Constitutionality
Appellants argue that if the low bid law prohibits the Board‘s policy, the law is unconstitutional as applied.
1. Duty of Affirmative Action
a. United States Constitution
Appellants boldly claim that the Constitution imposes upon the School District a legal duty to take affirmative action to remedy the effects of past discrimination, and that any state law that prevents such action therefore violates the Supremacy Clause.
We think it is useful and necessary to distinguish between the two major types of positive governmental action taken on behalf of minоrities.5 First, there are “reshuffle” programs, in which the state neither gives to nor withholds from anyone any benefits because of that person‘s group status, but rather ensures that everyone in every group enjoys the same rights in the same place.6 The most common examples are school desegregation cases and programs.
Second, there are “stacked deck” programs, in which the state specifically favors members of minorities in the competition with members of the majority for benefits that the state can give to some citizens but not to all.7 This category includes affirmative action programs of both the quota аnd “positive-factor” varieties8 (but not programs that merely encourage more minority persons to apply for state-conferred benefits).
It is well established that the state has an affirmative constitutional duty to use “reshuffle” programs to cure the effects of past or present de jure segregation. Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) (Brown II ); United States v. Montgomery County Board of Education, 395 U.S. 225, 89 S.Ct. 1670, 23 L.Ed.2d 263 (1969) (faculty assignment); cf. Dayton Board of Education v. Brinkman, 433 U.S. 406, 413, 97 S.Ct. 2766, 2772, 53 L.Ed.2d 851 (1977) (no duty to desegregate schools where cause is past de facto segregation). Where such a duty exists, remedies that merely avoid further overt state discrimination are inadequate if they fail to effect an immediate reshuffle. Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); Green v. County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968).
On the other hand, there is no constitutional duty to engage in “stacked deck” affirmative аction.9 In our view, the reason for this is that “stacked deck” programs trench on
(1) “Stacked deck” programs offer the possibility that the official discrimination is or may become invidious. “Reshuffle” programs are inherently not invidious.
(2) In a “stacked deck” operation, a scarce benefit goes to one individual, while another individual is totally deprived of it. “Reshuffle” programs not only provide something to everyone, they provide the same thing (e. g., education in an integrated school) to everyone.
(3) In the short run, a “stacked deck” program works wholly to the benefit of certain members of one group, and correspondingly to the harm of certain members of another group. “Reshuffle” programs theoretically provide some benefits also to the whites, for their exposure to the minorities is expected to bring understanding and wisdom. See Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972). But “stacked deck” programs do not provide even collateral benefits to the disadvantaged whites.
(4) A “stacked deck” program arguably deprives citizens of rights (e. g., the right to make contracts, free from racial discrimination; cf.
It is true that courts, after making judicial findings оf past or present discrimination and a need for affirmative action, have sometimes imposed “stacked deck” affirmative action remedies on public bodies for
No authority impels us to find a constitutional duty to take “stacked deck” affirmative action. If the Supreme Court believed that such a duty existed, it surely would have said so in Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978). On the contrary, even the Bakke dissenters admitted that a school “is generally free, as far as the Constitution is concerned, to abjure granting any racial preferences in its admissions program.” Id. at 379, 98 S.Ct. at 2794 (Brennan, J., dissenting). Similarly, we think it significant that in all cases in recent years where the permissibility of “stacked deck” programs was sharply attacked, no court has ventured to still all the controversy by proclaiming that not only is such affirmative action permitted, it is actually required by the Constitution.
There is no doubt that the enactors of the
Therefore, because no precedent suggests that the
Moreover, even if the argued-for constitutional duty exists, it could not come into play until proper findings were made of discrimination and the need for affirmative action to redress it. Such findings were not and could not be made in this case, as we show infra.
b. California Constitution
Nor is “stacked deck” affirmative action required by the California Constitution. It is true that Crawford v. Board of Education, 17 Cal.3d 280, 551 P.2d 28, 130 Cal.Rptr. 724 (1976), held that school boards have an affirmative duty under the state constitution to take “reshuffle” аffirmative action to alleviate racial segregation in the public schools, regardless of whether its root cause was de facto or de jure segregation or anything else. However, Crawford (1) confined itself to the alleviation of disproportionate minority-student enrollment in public schools; (2) refused to set numerical quotas even in the “reshuffle” desegregation context; and (3) did not authorize “stacked deck” affirmative action in any context. Therefore, there is no reason to think that the California Constitution compels school boards to engage in “stacked deck” affirmative action geared to numerical quotas, especially in areas other than school enrollment.
Appellants assert that the affirmative action program is necessary to ensure equal educational opportunities for minority students in vocational work/study programs. While the lack of opportunities in such programs is an educational concern, the availability of post-graduation employment is not. Schools teach; what happens to the graduates is the province of other agencies. “The elimination of racial discrimination in public schools is a large task and one that should not be retarded by efforts to achieve broader purposes lying beyond the jurisdiction of school authorities.” Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 22, 91 S.Ct. 1267, 1279, 28 L.Ed.2d 554 (1971).
Besides, if the Board truly were concerned with education, rather than employment, its affirmative action policy would merely compel contractors to offer work experience to all vocational education students, regardless of race. Instead, the policy says nothing about the education or hiring of any minority workers, student or non-student; its concern is that employers be minority. Even if the Board‘s policy might have the effect of enhancing education opportunities for minority students, we find that the previous inequality was not so great, and the ameliorative effect would not be so pronounced, that the policy is constitutionally compelled.
c. Irretractability
Appellants argue further that once a program is proven in practice to dispel discrimination, it is unconstitutional to withdraw from it. By this logic, even if the Board was not initially compelled by the Constitution to adopt its affirmative action policy, it is now compelled to continue it.
Apparently, the Supreme Court‘s position is that it is a constitutional violation for a school board to rescind previous action if and only if the board was under a constitutional duty to take the action initially. Dayton Board of Education v. Brinkman, 433 U.S. 406, 414, 97 S.Ct. 2766, 2772, 53 L.Ed.2d 851 (1977). Because we hold that thе Board here had no constitutional duty to adopt its affirmative action policy, the Constitution does not forbid the Board to return to its former race-neutral policy.
In support of their argument, appellants cite only Ethridge v. Rhodes, 268 F.Supp. 83 (S.D.Ohio 1967). There the state proposed to withdraw a requirement that contractors sign assurances that they would not discriminate against black workers. Given the state‘s knowledge that this would result in only whites being hired, the court properly found unconstitutional state action. But in this case no state agency is signalling private parties that they may disregard statutory antidiscrimination laws, so Ethridge is inapposite.11
Therefore, even though when the Board‘s affirmative action policy was in effect the pеrcentage of subcontract dollars won by minority firms rose to 33%, we hold that the Board has no constitutional obligation to maintain the policy.12
2. Power to Prohibit Affirmative Action
Appellants argue that, even if the affirmative action policy is not constitutionally compelled, the state law prohibiting it is nonetheless unconstitutional.
a. Legislative Incompetence Per Se
Appellants first argue that voluntary, local affirmative action programs such as the one here are extremely useful tools for eliminating the effects of past discrimination and for raising minorities to a position of economic and sociological equality, and that therefore it is per se unconstitutional for a state to ban them.
Whether courts might think that voluntary affirmative action should be a favored policy is of no moment. There is no constitutional duty for the state or the Board to take affirmative action here.13 This holding would be vitiated if on constitutional grounds we denied the state the power to decide that certain policies outweigh the policy of affirmative action, and to enforce that decision against the agencies it has created. We decline to do so.
Appellants’ position boils down to an assertion that if a state legislature and a state agency disagree about the wisdom of affirmative action, the agency should prevail (if it is the entity in favor of affirmative action). This we cannot accept. The competent entity in such a situation is always the legislature, whose members are charged with responsibility and accountable to the people for such decisions. The Supreme Court has insisted that “explicit (legislative or Presidential) action, especially in areas of doubtful constitutionality, requires careful and purposeful consideration by those responsible for enacting and implementing our laws. Without explicit action by lawmakers, decisions of great constitutional import and effect would be relegated by default to administrators who, under our system of government, are not endowed with authority to decide them.” Greene v. McElroy, 360 U.S. 474, 507, 79 S.Ct. 1400, 1419, 3 L.Ed.2d 1377 (1959).
“Stacked deck” affirmative action, the constitutionality and wisdom as social policy of which are sharply debatable, is precisely the kind of policy decision in which legislatures have the greatest advantage in competence over local agencies such as school boards. Therefore, we hold that it is constitutionally acceptable for a legislative determination to foreclose, as it does in this case, the Board from voluntarily adopting an affirmative action policy.14
b. Discriminatory Impact and Intent
Evеn if the low bid law is not unconstitutional per se because it removes the Board‘s authority under state law to take “stacked deck” affirmative action, it still must be tested under Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976).
Under Washington, “a law, neutral on its face and serving ends otherwise within the power of government to pursue, is (not) invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another.” Id. at 242, 96 S.Ct. at 2049. Even in cases involving so-called discriminatory impact, “the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose.” Id. at 240, 96 S.Ct. at 2048.
The requirement of
Obviously, when the low bid law was passed in 1917, its purpose was not to disadvantage racial minorities. It was designеd to protect the public fisc by preventing public officials from awarding contracts uneconomically on the basis of special friendships. Cf. Miller v. McKinnon, 20 Cal.2d 83, 88, 124 P.2d 34, 37-38 (1942) (purpose of competitive bidding on public contracts is to protect taxpayers from corruption and prevent waste of public funds). Such friendships might be based on mutual fondness, bribery, political co-partisanship, racial/ethnic affinity, or any combination of these. It is highly unlikely that minority contractors of that day were in such positions of special friendship; instead, such arrangements harmed the racial outsiders. If anything, the purpose of the low bid law was to help such outsider contractors.
Therefore, the low bid law passes the Washington v. Davis test, and must be upheld.
E. Constitutionality of the Policy
Even if the Board‘s policy was permissible under state law, or if the state law that prohibited the policy was unconstitutional, we would still have to test the policy itself against the standard of the United States Constitution before we could reverse the district court. Because of our disposition of the other issues, we need not reach this one, especially in light of the grant of certiorari to Fullilove v. Kreps, 584 F.2d 600 (2d Cir. 1978), cert. granted sub nom. Fullilove v. Klutznick, 441 U.S. 960, 99 S.Ct. 2403, 60 L.Ed.2d 1064 (1979).
III. Conclusion
The Board lacked authority to adopt its affirmative action policy because the policy was inconsistent with the California low bid law. This application of the low bid law is constitutional.
Our opinion of July 16, 1979, slip op. аt 2487, is withdrawn.
AFFIRMED.
Notes
We would not deny that under California law a school board may require a bidder to agree not to violate antidiscrimination laws. See 42 Cal.Op.Atty.Gen. 169, 171 (1963). The Board‘s affirmative action policy is not a state or federal statute, however, but merely represents the Board‘s beliefs on a controversial social question. Refusal to accede to such beliefs is not a ground, under California law, for exclusion from public contracts. See 57 Cal.Op.Atty.Gen. 574 (1974) (attempt to bar non-union shоps from bidding on state printing contracts).
The term “reshuffle” suggests both the physical interposition of the various cards, and the creation of equality of opportunity for the players by the elimination of an unfair stack.
Some cases uphold or impose “stacked deck” affirmative action under federal statutes such as Title VII of the Civil Rights Act of 1964 and the Public Works Employment Act of 1977; these cases are irrelevant to our discussion of constitutional duty.
We also think that United Jewish Organizations v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977), is not adverse to our position. There, the Court upheld elеction redistricting, undertaken to satisfy the Voting Rights Act of 1965, that deliberately split a Hasidic Jewish community between two districts so as to assure uniform nonwhite majorities in both districts. Although no Justice‘s opinion commanded a majority of the Court, it is clear that the redistricting took race into account, was intended to help nonwhites, and had the effect of disadvantaging the “discrete and insular” Hasidim. However, close examination proves that this was just another “reshuffle” case, because no individual Hasid was placed in a district that violated the one-person-one-vote rule, and the petitioners denied that there was a right to maintain permanently in a single district the community‘s bloc voting power, id. at 154 n.14, 97 S.Ct. at 1004 n.14. It is well established that competent agencies may take race into account in “reshuffle” contexts.
Note that these cases involve police, fire, and highway patrol departments, that cannot perform effectively unless the public accords them cooperation and goodwill. Cooperation is unlikely if the public views them as symbols of discrimination. Thus, there is an interest in the immediate and visible integration of those departments.
However, there is no special functional value in a physical show of integration in this case, which involves the ownership of subcontracting firms on school construction projects.