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Calif. diversity push could run afoul of state law

Associated Press | 4/8/2009, 4:53 a.m.

SACRAMENTO — The state Department of Transportation has created a plan to boost hiring of minority firms for work on road projects, a development that affirmative action opponents said might violate California law.

The Federal Highway Administration last week formally approved the department’s minority business contracting plan. It seeks to award more transportation contracts to firms owned by blacks, Asians, Native Americans and women as part of an ongoing effort to increase diversity.

Opponents of affirmative action have warned the department that proceeding with the minority contracting goals potentially violates the provisions of Proposition 209, California’s 12-year-old ban on considering race in student admissions and public hiring.

Ward Connerly, who led support for Proposition 209, said he thinks the department’s approach is wrong and could expose the state to a lawsuit. Connerly, who is black, is an anti-affirmative action advocate who has pushed for laws in a number of states to ban preferential treatment based on race, gender or ethnicity.

“This seems to be an end-run around Prop. 209 and what we believe to be a violation of the federal Constitution that demands everybody be treated equally,” said Sharon Browne, an attorney with the Sacramento-based Pacific Legal Foundation who defends Proposition 209.

Voters approved the initiative in 1996 with 55 percent support. Specifically, it prohibits state and local governments and schools from discriminating or granting preferential treatment based on race, sex or ethnicity.

State transportation director Will Kempton defended the department’s minority contracting goals as part of an ongoing effort to increase diversity in hiring for state transportation projects.

The department has set a goal of having 13.5 percent of all contracts going to minority firms, Kempton said. It would use a combination of quotas — known as a “race-conscious” effort — and outreach to small businesses, which the department refers to as a “race-neutral” effort.

Kempton said by using only the “race-neutral” approach in recent years, the department’s minority contracting rate had fallen to just 2 percent of all contracts. Since the early 1980s, the federal government has encouraged states to try giving at least 10 percent of federally funded transportation projects to women- and minority-owned firms.

It has said federal funding could be jeopardized if states fail to show a good-faith effort to do so.

“I think the state has been very committed to meeting the federal requirement, and certainly the governor has been committed to including small and disadvantaged businesses into the program,” Kempton said.

The department’s figures show that about 2,000 minority- and women-owned businesses are certified to bid on road projects. The number of all subcontractors was not immediately available, department spokesman Matt Rocco said.

Its new minority-hiring directive was given conditional approval by the Federal Housing Administration in late February, a decision that was affirmed last Thursday. It does not apply to firms operated by Hispanics or those whose origins are from India. The department says those groups already are sufficiently represented in state highway contracts.