On November 16, in San Francisco County Superior Court, department 302, at 9:30 a.m., the court will hear oral argument on the cross-motions for summary judgment in the case called Coral Construction v. City and County of San Francisco. At the hearing, attorneys for San Francisco will make an argument that no court has ever accepted, or been asked to accept. The city will try to convince the court that it was compelled by the federal Equal Protection Clause to implement an ordinance that granted preferences to some groups and discriminated against others on the basis of race and sex.
In 2004, the court ruled that the city’s ordinance violated Article I, section 31 of the California Constitution (Proposition 209), and issued an injunction prohibiting the city from enforcing its ordinance. That ruling eventually made its way to the California Supreme Court, primarily on the issue of whether Proposition 209 itself violated the Equal Protection Clause. In 2010, the supreme court issued its decision that Proposition 209 was indeed constitutional. But the supreme court remanded the case back to the trial court to resolve the city’s federal compulsion affirmative defense.
Essentially, the city must convince the court that (1) it has been so powerless and inept that it has been unable to force itself to comply with federal and state constitutional prohibitions against discrimination; or (2) despite governing over a geographical area heralded for its progressive politics, tolerance, and diversity, the city has for decades deliberately enacted and enforced contracting procedures with the intent to discriminate against every category of racial and ethnic minorities and women.
PLF principal attorney Meriem Hubbard, representing Coral Construction, will explain why the court should reject the city’s arguments and rule that the city’s discriminatory ordinance violates Proposition 209. The city’s claims are highly suspect, of course. For instance, in a case before the Ninth Circuit called Darensburg v. Metropolitan Transportation Commission, Judge Noonan wrote in his concurring opinion that: “The notion of a Bay Area [government] bent on racist goals is a specter that only desperate litigation could entertain.”
Note: the hearing had been set for November 8th, but today the court continued the hearing to November 16th.