THE IMPACT of PROPOSITION 209 on EDUCATION, EMPLOYMENT AND CONTRACTING

Opportunities for Women in California

 By Beth H. Parker

In November 1996, California voters passed the California Civil Rights Initiative, more commonly known as Proposition 209. The initiative amended the California Constitution to ban preferences based on race or gender in public sector education, employment, and contracting. Initially enjoined from implementation by a federal district court, the initiative did not go into effect until August 28, 1997, when the Ninth Circuit Court of Appeal declared Prop 209 constitutional. Uncertainty about the initiative’s validity continued, however, until the Supreme Court declined to review the Ninth Circuit decision in November 1997. At that time, everyone recognized that Prop 209’s prohibition on gender- and race-based preferences would go into effect.

Of major concern is that Prop 209 will have a wide-ranging impact on the opportunities of women in public sector education, employment and contracting. Women have been major beneficiaries of affirmative action policies since they went into effect in the 1970s. While equality with their male colleagues still has not been achieved, women have experienced increases in opportunities in post-secondary education, public sector employment, and the ability to participate in public works contracts.

While it is too early to assess the long term consequences on women of ending affirmative action in California, some predictions can be made. First, post-secondary educational opportunities will probably experience the least impact; women are attending and graduating college in greater numbers than their male peers. The women who will suffer from the elimination of race and gender preferences in the admissions process are Latinas and African-American women. That is probably due more from the institutional residue of race than gender discrimination.

The greatest impact will undoubtedly be borne by women in nontraditional fields, whose opportunities to bid on and receive public works contracts have been expanded greatly by affirmative action programs. Anecdotal evidence and early studies already show a marked drop in the awarding of contracts to women-owned businesses. Both private and public sector contractors have indicated that Prop 209 signals the end of affirmative action obligations.

The impact of 209’s passage on public sector employment is the least clear. Women, and women of color in particular, have experienced significant gains in job opportunities and abilities to advance in state and local government. Whether these gains have been institutionalized sufficiently to withstand the historic tide of gender discrimination, or will disappear with the demise of affirmative action, will not be known for some time. The result will probably turn, in part, on the leadership within state government and the ability of the civil rights community to monitor and enforce surviving affirmative action and nondiscrimination policies.

 

I. Affirmative Action and Women in California: Historical Overview
A. Education

For more than 25 years, California has used affirmative action to increase diversity at post-secondary schools. By increasing access to and enjoyment of educational opportunity, this policy promotes at least two important goals. It acts on the principle that educational attainment translates into increased employment opportunities. Moreover, by increasing the diversity of the student body, it improves the quality of education received by all students. As the President of the University of California recently said: “In the world of ideas, the greatest source of intellectual growth comes from the challenge to one’s assumptions, perspectives and ways of thinking. Exposure to peers with varying backgrounds is an important source of this kind of challenge.”1

Affirmative action in the educational context has taken a wide variety of forms. The most well known is the use of race or gender as a plus factor in the post-secondary admissions process. Because the kindergarten through high school (K-12) system is compulsory, it does not have an admissions process that provides preferential treatment based on gender or race. The system, however, has created some targeted programs to counteract perceived inequalities in teaching methods. In recent years, for example, some California schools have established “Girls’ Math” programs in response to studies showing that girls receive significantly less attention from classroom teachers than boys. These enable schools to offer all-girls’ math classes.

At the post-secondary level, California has instituted a number of corrective programs designed to improve access to and success at institutions of higher learning. Some encourage outreach to student populations underrepresented in community colleges and universities2; some enrich academic preparation3; others provide loans and fellowships to ease the financial burden of continuing education.4

The increase in access to institutions of higher learning has had a profound impact on women and girls. Female high school graduates are now more likely to enter colleges or universities than their male counterparts – 70.3% compared with 63.5%.5 Women earn slightly more than half (52.9%) of the bachelor degrees awarded by the University of California. Women now constitute almost half of California’s medical (43.6%) and law (49.3%) school student bodies.6
The recent, improved occupational status of women is credited to these important changes in educational attainment. In 1970, only 8.2 percent of women age 25 and older had completed four years of college. By 1990, this figure had more than doubled to 18.4 percent.7 Although women still earn significantly less than men in 97% of occupations for which data is available, the wage gap also has narrowed in the last twenty years: women’s annual wages were 73.8% of men’s in 1997, compared to only 59.7% in 1979.8
Another significant affirmative action policy in the educational context is the effort to promote the hiring and advancement of women and minorities. Institutions at all levels of California’s education system have instituted hiring practices to counteract the gender imbalance in employee ranks. These target women administrators, teachers in the predominantly male fields of science and math and college faculty.9 As a result of these efforts, advances have occurred in these arenas over the last ten to fifteen years. The University of California, for example, reports that 30.5% of new faculty appointees were women in 1991-93, compared to 21.3% in 1979-81.10
Despite these advances, some affirmative action programs remain necessary in post-secondary educational institutions in California. While gender may no longer be necessary as a plus factor in college admissions, outreach to improve participation in mathematical and scientific fields and hiring at institutions of higher learning should continue. Men still significantly outnumber women in virtually all scientific fields.11 While the teaching staff in K-12 public schools is overwhelmingly female, gender parity has not been achieved in top administrative posts and faculty appointments at post-secondary institutions. According to the California Department of Education, in October 1996, there were 46.7% male and 53.29% female principals. These numbers contrast sharply with 28.3% for male and 71.4% for female teachers. As for faculty appointments, women occupied only 26.7% of full-time faculty positions at the University of California, 29.6% of the faculty at California State University system, and 41.9% in the California Community Colleges in 1992.12 The percentage of women tenured faculty was even smaller. At the University of California, for example, women occupied only 18.1% of tenured faculty in 1994.13
B. Employment

Affirmative action programs in public employment and apprenticeship training, including those Governor Reagan signed into law on February 1, 1974, were designed to counteract historic inequalities. These programs require public agencies to determine if particular groups are underrepresented in their workforce. If they are, the agencies are to devise specific recruiting, training and career advancement tools to ensure equal opportunities for all qualified applicants.14

These programs have had considerable impact. As the California Senate Office of Research concluded in 1995, they have “paved the way for the arrival and advancement of record numbers of women and minorities in a plethora of careers and higher-paying positions.”15 In March 1998, women comprised 47.9% of the state civil service workforce.16 Thirty-seven percent of new hires by California state and local governments were women in 1993. As women comprise 44% of California’s labor force, parity has almost been achieved for new hires.17
While great strides have been made at the entry level, glass ceilings still persist. Women only have achieved labor force parity in eight of the nineteen job categories in California’s civil service system.18 The greatest disparities exist in the highest ranks of public jobs – those considered officials and administrators. Indeed, in the Career Executive Assignment category, the highest level in the civil service system, women held only 30.9% of the positions as of March 1998.19 Moreover, women working in state and local government in California continue to earn substantially less than men. In 1993, the median annual salary for a male public employee was $42,556; that for a woman was $31,897, a 25% differential.20

 

C. Contracting

Affirmative action in contracting came more than a decade later in California. It was not until 1988 that the California Legislature enacted contracting goal programs specifically for women owned business enterprises (WBEs) and minority owned business enterprises (MBEs). This law required that all contracts awarded by state agencies have statewide contracting participation goals of at least 15% for MBEs and 5% for WBEs. For each applicable contract, prime contractors must achieve the minimum WBE and MBE participation goals or demonstrate that they made a “good faith effort” to achieve the required participation level.21

As with other affirmative action efforts, the contracting programs enjoyed some of their intended effects. Historically, many governmental entities awarded contracts based on political patronage or social connections rather than on a bidder’s qualifications or price quote.22 As a result, the overwhelming majority of state contracts were awarded to businesses owned by white males. Over time, due to the implementation of outreach and set aside programs, these numbers began to shift. By 1996, for example, community colleges awarded approximately 4.6% of their more than $590 million in annual contracts to WBEs.23 The Department of Corrections awarded WBEs 6.6% of its nearly $460 million in annual contracts.24
The need for these programs, however, continues. In 1996, women-owned businesses accounted for one-third (38%) of all firms in California and employed 27% of California’s workers.25 If contracts were awarded equitably, WBEs would receive a far greater share of state awarded contracts than, even with affirmative action, is currently the case. Ordinarily, it would be expected that the proportion of contract dollars awarded to WBEs would in time equal the proportion of WBEs in the relevant market. This has not remotely been achieved. One recent disparity study, conducted by the City of San Francisco, found that only 1.69% of construction prime contracts were awarded to WBEs in 1996-97 although they constituted 7.06% of the relevant market. As a result, WBEs lost more than $28 million in potential revenues.26
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    1.  II. Impact of Prop 209 on Affirmative Action Programs

 A. Proposition 209  

Proposition 209 explicitly eliminates preferences based on race or gender in public sector education, employment and contracting. Its central provision states: “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”27 “State” is defined broadly to include virtually all California public entities including the state government, local governments, school districts, public universities and colleges.28 In addition, Prop 209 contains another substantive clause that focuses solely on gender. That section provides: “Nothing in this section shall be interpreted as prohibiting bona fide qualifications based on sex which are reasonably necessary to the normal operation of public employment, public education or public contracting.”29

While the language of these two provisions is ambiguous and has not yet been definitively interpreted by the California courts, some things are clear. The proposition does not regulate private sector affirmative action programs. Nor does it prohibit the state from using race- and gender-conscious policies outside the arenas of education, employment and contracting. The initiative also contains two important exceptions. California agencies can continue to use affirmative action when necessary to maintain eligibility for federal funding.30 Similarly, the proposition does not apply to existing affirmative action plans developed in response to a court order or consent decree.31
Because Prop 209 amended the California Constitution, it theoretically repeals all existing public sector affirmative action programs in California not required by federal law. As a practical matter, however, the programs stay in place until either the California Legislature repeals them or a court declares them unconstitutional.32

 

B. Post-209 Executive, Legislative and Litigation Activities

Immediately after Prop 209 was passed in November 1996, the climate for affirmative action began to change. Administrators both within and without government began thinking affirmative action efforts were no longer needed, the anti-discrimination laws no longer had any effect. Before any laws or programs had been invalidated, there was widespread belief that no one was monitoring compliance with existing requirements. Thus, there was no need to follow, much less enforce, existing policies.

Governor Wilson and his administration reinforced this perception by implementing a multi-pronged strategy to dismantle California’s existing affirmative action programs even before Proposition 209 went into effect in August 1997. First, in 1995, Governor Wilson issued an Executive Order and the Board of Regents of the University of California passed a resolution eliminating the use of gender, race or ethnicity as criteria for admissions to UC or any program of study.33 Next, in 1996, Governor Wilson filed suit against five state agencies, which have legislatively-mandated affirmative action employment and contracting programs, asking the court to declare them unconstitutional as improper race and gender preferences.34 These include the State Personnel Board, which awards more than $3.21 million in contracts annually, the California Lottery, the Department of General Services, and the California Community Colleges, which contracted out more than $590 million for goods and services in 1996 alone.

A week after Proposition 209 was upheld by the Ninth Circuit, Governor Wilson stepped up his efforts. He unveiled a list of thirty-three state affirmative action programs, which he contended violated Prop 209, and asked the Legislature to repeal or amend them.35 Included were eleven education programs, ranging from the Community College Extended Opportunity Programs and Services, which served more than 83,000 students with a budget of $53 million in 1996-97, to the tiny Science, Mathematics, and Technology Teacher Pipeline Program, which was enacted in 1993 to “prepare and employ traditionally underrepresented students and adults…as teachers of science, mathematics, and technology.”36 The employment programs he targeted covered more than one million state civil service employees. The eleven contracting programs for which he recommended repeal affected $4 billion in annual state contracts.

In March 1998, Governor Wilson issued an Executive Order that ordered state agencies immediately to cease implementing and enforcing the Minority and Women Business Enterprise Program. As part of its mandate, the order directed all state agencies and officials to stop tracking information about the utilization of MBEs and WBEs in public contracting.37 California’s Public Contract Code requires all state agencies to report annually to the Governor and the Legislature on the level of MBE and WBE participation in state contracting. It also requires the Department of Transportation to maintain a computerized data bank of all certified MBEs and WBEs. The Department of Transportation interpreted the Executive Order as a directive to cease maintaining this data bank as well.

The civil rights community immediately filed suit to enjoin implementation of this order.38 How, they maintained, could the state ensure that it was not discriminating against minority and women-owned businesses if it did not collect the data to track the contracting process? Data is the major measure used to prove discrimination in employment and, by analogy, the equitable awarding of state contracts. Statistical disparities between employment of a protected group and the percentage of members of the protected group in the relevant labor pool may constitute prima facie proof of a pattern or practice of discrimination.39 As the United States Supreme Court has explained:

  • Statistics showing racial or ethnic imbalance are probative…only because such imbalance is often a telltale sign of purposeful discrimination; absent explanation, it is ordinarily to be expected that nondiscriminatory hiring practices will in time result in a workforce more or less representative of the population in the community from which the employees are hired.40
  • Even more relevant, the Supreme Court has held that “[w]here there is a significant statistical disparity between the number of qualified minority contractors willing and able to perform a particular service and the number of such contractors actually engaged by the locality or the locality’s prime contractors, an inference of discriminatory exclusion could arise.”41 Thus, with a stroke of a pen, Governor Wilson was able to eliminate both the means to track whether state contracts are equitably awarded and the means to establish discriminatory conduct where it does occur.42
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    • The Governor was not the only one who sought to eliminate long-standing affirmative action programs in the wake of Prop 209. When the California Legislature reconvened in January 1998, both Assemblyman Richter and State Senator Kopp introduced bills in their respective houses to repeal the thirty-three identified programs. Richter’s bill43 sought the wholesale elimination of many of the programs. For other programs, the effect of his proposal, although not the means, was the same; he proposed to substitute social and economic handicaps for race and gender. Thus, he proposed that the Minority Health Professions Education Foundation, designed to increase the number of minority professionals serving minority communities44, eliminate the word “minority” from its title and directives.

    Senator Kopp’s bill45 was more complex. It proposed to dismantle various programs that promoted access for women and minorities in public sector education, employment and contracting. For other programs, it sought to delete all reference to “female” or “minority,” effectively eliminating their original purpose to promote equal participation of women and minorities in state employment and contracting. In the programs’ stead, the bill established a new Office of Outreach to facilitate an aggressive outreach effort to “economically disadvantaged” individuals and small businesses. The bill also proposed to enact the Small Business Acquisition and Contract Act to promote the participation of small businesses in state contracting. The end result was a switch from encouraging the participation of MBEs and WBEs in state employment and contracting to an emphasis on small businesses.

    Although both bills were defeated in committee, the battle to repeal existing state affirmative action programs or change their focus has not ended. Some agencies simply have shifted the focus of their programs from racial minorities and women to those who are “economically disadvantaged.” It appears, for example, that the California Student Aid Commission already has shifted its priority consideration of students for graduate fellowships from those who were historically underrepresented (women and certain ethnic minorities) to those who are economically disadvantaged.46 In addition, the Legislature may take up individual programs and reconsider them in this context next session.

    Public interest groups opposed to affirmative action similarly have initiated aggressive action to stop affirmative action programs in their wake. The Pacific Legal Foundation, a conservative public interest law firm located in Sacramento, is actively monitoring how local agencies are responding to the passage of Prop 209. Shortly after the United States Supreme Court declined to review the constitutionality of the initiative, PLF sent out hundreds of warning letters to California cities and counties demanding government officials to abandon their affirmative action programs or face PLF in court.47 It then acted on its threat and filed suit in late 1997 against the City of San Jose, alleging that its good faith outreach program for the awarding of contracts for city public works projects violated Prop 209’s ban on race and gender preferences.48 It has publicly threatened as well to file suit against San Francisco, which has a good faith outreach program to increase the participation of MBEs and WBEs similar to that of San Jose.49

  • Because of Prop 209 and the threat of litigation, many local government agencies around California are reconsidering the affirmative action programs they have in place. The Los Angeles Board of Education, for example, voted in mid-April to dismantle seven education commissions, including one established to promote gender equity, to avoid litigation under Prop 209.50 Good faith outreach programs to increase the participation of women and minority owned businesses in public works contracts are in particular jeopardy. Counties have gone in all different directions. Some, such as Sacramento, have eliminated bid preferences for MBEs and WBEs but kept their good faith outreach efforts in place. Others, such as Contra Costa and Santa Clara counties, have suspended their programs in their entirety. Even others, such as the cities of San Francisco and Richmond, have decided to retain their goals and good faith efforts policies on the ground that disparity studies indicate past discriminatory impact.

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  • C. Projected Impact on Women

    It is too soon to tell what the full impact of these changes will be. Many governmental agencies in California are waiting until the courts define the scope of “preferential treatment” under Prop 209. Does it exclude outreach and recruitment programs,51 or are they banned as well? To date, the lower courts are divided on whether these programs violate 209. A Santa Clara County superior court judge struck down San Jose’s good faith program. That case is now on appeal.52 The City of Los Angeles’ program, by contrast, was upheld. The Superior Court there found that Prop 209 did not prohibit affirmative action per se. Nor did the initiative prohibit the promotion of employment retention or advancement of any particular class of people. Instead, the court concluded the program only provided equal opportunity to all to compete for public contracts.53

  • Will other states adopt similar anti-affirmative action measures? To date, seven states have seen voter-based anti-affirmative action initiatives; eighteen have considered new affirmative action legislation since 1997.54
  • Anecdotal evidence suggests that in some areas, the impact could be dramatic. The awarding of construction contracts to women, in particular, will undoubtedly decrease. There is strong resistance to women in the nontraditional construction trades. Most women in the field believe they only have succeeded because of affirmative action programs, which notify them of opportunities and create incentives for them to be hired. The dozen women members of the elevator constructors union, which covers much of California, Nevada and Utah, believe that affirmative action is the only reason they have been allowed to participate in their trade.55 Without the California Apprenticeship Program, one of the programs under attack, they never would have been given the opportunity to join this lucrative field, where union members earn $45 an hour. The women elevator constructors are concerned that “without far more vigorous enforcement of affirmative action participation goals, there won’t be many more women getting the same chance they got to prove their value as steady, mechanically skilled and proud workers in the elevator trade.”56
  • Others already report that they have witnessed a sharp decline in opportunities to bid on state contracts since the passage of 209. As one woman owner of an environmental cleanup company reported: “Proposition 209 killed me. I’ve been through the wringer.”57 Before the passage of 209, Lisa Campbell had a staff that peaked at 150, with crews working up to 16 or 17 jobs at a time. She had a 10,000 square-foot combination office and warehouse. Since November 1997, she has downsized to nine employees and works out of her home garage. Everything changed, she contends, because of 209:
  • After 209, there’s so much less out there. As a woman in an all-male industry, I have to work harder and smarter. We’re just not getting the requests for bids like we once used to, because they just kinda want to deal with their good old boy thing.58
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  • Another owner of a building supply company reported that she used to use a ream of fax paper daily to handle the average of 50 bid requests she received each day. Now, with affirmative action programs largely in abeyance, she receives two or three. General contractors no longer notify her of jobs. When she inquires about bidding on a government contract, she hears: “We don’t have to take your bid. There’s no more good-faith effort.”59

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  • A recent study of the impact of eliminating hiring goals for municipal contracts in San Diego confirms these concerns. In 1993, a federal court struck down the city’s Equal Opportunity Contracting Program, which set hiring goals for municipal contracts for MBEs and WBEs. The study found that, as a result, the number of city contracts awarded to minority and women owned businesses declined precipitously. From 1985-1993, when the program was in place, the city issued $629 million in construction contracts. Women received approximately $57 million, or roughly 9.2%. Between 1994 and 1997, after the program was disbanded, women received only 5.7%. Moreover, the study concluded, the drop was not due to unavailability or incompetency. It found that there were an adequate number of female-owned construction firms and no evidence that they “became technically incapable of competing for and completing construction contracts.”60
  • Another, as yet unknown, effect is the impact on California’s minority women of the elimination of both race and gender-based preferences. Twenty percent of California’s female workforce are now African-American, Latina or Asian-American.61 These women historically have experienced the discriminatory impact of both their ethnicity and sex. The change in UC’s admissions policies has witnessed a dramatic decrease in the number of African-American, Latino and Native American students admitted.62 While the overall number of women students has not declined, female members of these racial groups have declined like their male counterparts.

    Minority women also have experienced greater access to and achievement in public sector employment than their private sector counterparts. From 1970 to 1990, African-American and Asian-American women were overrepresented in state government jobs. From 1980 to 1990, Latinas were overrepresented in the public sector as well.63 In other words, for minority women in California, it appears it was easier to obtain employment in the public sector than in the private. Women of color also faced fewer race-related barriers to managerial and professional jobs in state/local sector employment than in the private sector.64 As a result, they were able to advance further and achieve higher relative earnings.

    What this means in a post-affirmative action world is as yet unknown. It appears that women of color in time may experience lower wages if their opportunities for advancement decrease. Some managers and professionals who are not able to find comparable positions in the private sector may also become underemployed.65 These concerns may become significant as the numbers of minority women in California continue to grow in the new millenium. In 1990, 58.2% of Californian women were non-Hispanic white.66 By the year 2010, it is predicted that California will have no racial group in the majority.

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  • D. Future Efforts

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    Because the long-term impact on women of Prop 209 is as yet unknown, certain activities need to continue into the future. First and foremost, the civil rights community needs to continue monitoring the enforcement of existing affirmative action programs and anti-discrimination laws in both the public and private sectors. To dispel the perception that affirmative action is dead, the civil rights community needs to keep these issues, and the impact of 209’s passage, in the public’s eye. Most people, focus groups have shown, believe discrimination should not be tolerated. They are not opposed to affirmative action in concept, just the practice of preferential treatment.

    Statistical information needs to be collected and analyzed to continue monitoring the impact of 209. Research needs to be conducted, for example, on the status and progress of women in the State civil service system. Are the state agencies continuing to hire women in proportionate numbers despite the passage of Prop 209? Are women advancing appropriately within these agencies? Are they achieving pay equity? Statistical research needs to be conducted as well on the awarding of state contracts to MBEs and WBEs. Since Governor Wilson has ordered state agencies to cease collecting this date, it may be necessary to return to the Legislature in 1999 and seek new legislation mandating the collection and reporting of this information.

    Finally, discrimination lawsuits may be necessary to remind governmental agencies, and the public, that discrimination will not be tolerated in our education, employment and contracting systems. A coalition of civil rights groups is instituting a testing project to ferret out discrimination in the employment context. Paired testers (e.g., male/female, African-American/white) will apply for positions to determine whether targeted entities discriminate in the hiring process. If discrimination is found, lawsuits will need to be filed.

    The hope is that discrimination no longer exists; that educational, employment and contracting opportunities are enjoyed by all regardless of their gender or race; and that the mandate of Proposition 209 that “[t]he state shall not discriminate against. . . any individual or group on the basis of race, sex, color, ethnicity or national origin” will be met. Until that time, however, the civil rights community needs to be vigilant in fighting discriminatory practices and monitoring the implementation and enforcement of affirmation action policies.

     I would like to thank Ana Matosantos, Program Assistant at Equal Rights Advocates, for her research assistance.

    1. University of California, Office of the President, The Use of Socio-Economic Status in Place of Ethnicity in Undergraduate Admissions: A Report on the Results of an Exploratory Computer Simulation, May 1995; see also Regents of University of California v. Bakke, 438 U.S. 265, 312 (1978) (“The atmosphere of ’speculation, experiment and creation’—so essential to the quality of higher education—is widely believed to be promoted by a diverse student body.”).
    2. For example, California’s Community College Extended Opportunity Programs and Services (EOPS), Cal. Educ. Code §§ 69640-69656, targets community college students who are affected by “language, social and economic disadvantages,” with the aim of increasing their rates of matriculation, graduation, academic success and transfer to four-year institutions. The goal is to ensure that community colleges achieve a racial, ethnic, and gender composition which matches the composition of the community they serve.
    3. For example, the California Academic Partnership Program, Cal. Educ. Code §§ 11003-11007, has sponsored more than 50 partnerships with private institutions to improve the quality and effectiveness of K-12 instruction and served more than 130,000 students since its founding in 1984.
    4. For example, the State Graduate Fellowship Program, Cal. Educ. Code §§ 69670-69680, awarded $2.4 million in fellowships for graduate study to 764 recipients in 1996-97.
    5. Bureau of Labor Statistics, College Enrollment and Work Activity of 1997 High School Graduates, May 1, 1998, located at http:/stats.bls.gov/news.release/hsgec.nws.asp.
    6. Profile of UC, located at http:/www.ucop.edu/ucophome/commserv/profile/.
    7. Citizen’s Commission on Civil Rights, Affirmative Action: Working and Learning Together, at 13 (Oct. 1996).
    8. Women’s Bureau, U.S. Department of Labor, Women’s Earnings as Percent of Men’s, 1979-1996, located at www.dol.gov/dol/wb/public/wb_pubs/7996.asp.
    9. Cal. Edu. Code §§ 44100-44104 (school district employment); Cal. Edu. Code § 8650 et seq. (science, mathematics, and technology teacher pipeline program); Cal. Edu. Code §§ 87100-87107 (community college hiring and peer review).
    10. California Senate Office of Research, The Status of Affirmative Action in California, at 68 (March 1995)(hereinafter “Cal. Senate Office”).
    11. There are eight times as many male engineers, architects, and surveyors in California, for example, than female ones. U.S. Bureau of the Census, 1990 Census of Population and Housing, Tables 4 and 5.
    12. Cal. Senate Office, at 54.
    13. Id. at 69, Table 9A.
    14. See, e.g., Cal. Educ. Code §§ 44100-44104 (establishing affirmative action employment program for state’s school system); Cal. Educ. Code §§ 87100-87107 (extending affirmative action hiring to community colleges); Cal. Gov. Code §§ 19790-19799 (requiring each state agency and department to establish affirmative action programs for civil service employment).
    15. Cal. Senate Office, at 2.
    16. State Personnel Board, “Major Trends in the Composition of State Service” (May 4, 1998).
    17. Cal. Senate Office, at 30.
    18. Id. at 26.
    19. State Personnel Board, “Race/Ethnic, Gender and Disability Representation in Career Executive Assignment Positions in the State Civil Service.”
    20. Id. at 31-32.
    21. Cal. Public Contract Code §§ 10115-10115.15 (state agency contracts); Cal. Gov. Code § 14132 (transportation projects); Cal. Streets & Highways Code § 180.1 (seismic retrofitting projects); Cal. Gov. Code §§ 16850 et seq. (bond services); Cal. Educ. Code § 71028 (community college contracts); Cal. Public Contract Code § 10108 (Department of Corrections contracts).
    22. See, e.g., San Francisco, Cal. Admin. Code § 12D.2(10)(1995)(concluding that “[s]ome City departments continue to operate under the ’old boy network’ when awarding contracts”); Jean Merl, Affirmative Action Backers Angry at Riorden’s Silence, L.A. Times, Feb. 13, 1996, at A1, A10 (citing a city audit that found that a group of former Mayor Bradley’s supporters obtained airport concession contracts but did little or no work).
    23. Reaching for the Dream: Profiles in Affirmative Action, at 23 (March 1998).
    24. Id. at 25.
    25. National Foundation for Women Business Owners, Women-Owned Business in California: 1996 A Fact Sheet.
    26. City and County of San Francisco, Disparity Analysis 1996-97.
    27. Cal. Const. Art. I, § 31(a).
    28. Id. § 31(f).
    29. Id. § 31(c).
    30. Id. § 31(e).
    31. Id. § 31(d).
    32. Cal, Const. Art. III, § 3.5.
    33. Executive Order W-124-95, issued June 1, 1995; SP-1, approved July 1995.
    34. Wilson v. State Personnel Board, et al., No. 96CS01082 (Sacramento Superior Court). Summary judgment motion is scheduled to be heard in this case in June 1998.
    35. Governor’s Office, Press Release, Wilson Unveils List of Current State Statutes which Grant Race- or Gender-Based Preferences in Violation of Proposition 209 (Sept. 9, 1997).
    36. Cal. Educ. Code §§ 8650 et seq.. For a complete listing of the programs Governor Wilson sought to repeal, see Reaching for the Dream, at 7-27.
    37. Executive Order W-172-98, issued March 10, 1998.
    38. Barlow v. Wilson, No. 796308-9 (Alameda Superior Court).
    39. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 339-43 (1977); see also Hazelwood School District v. United States, 433 U.S. 299, 307-08 (1977).
    40. Teamsters, 431 U.S. at 342 n.20.
    41. City of Richmond v. Croson, 488 U.S. 469, 509 (1989).
    42. The Alameda Superior Court denied plaintiffs’ preliminary injunction, which sought to enjoin the executive order. As a result, the state will no longer collect data on the awarding of contracts to MBEs and WBEs unless and until an appellate court reverses the lower court ruling.
    43. AB 1700 (Richter).
    44. Cal. Health & Safety Code §§ 128330-128445.
    45. SB 2041 (Kopp).
    46. Reaching for the Dream, at 13.
    47. Pacific Legal Foundation, Proposition 209 Update, located at www.pacificlegal.org/GP-209.HTM.
    48. Hi-Voltage Wire Works, Inc. v. City of San Jose, No. CV 768694 (Santa Clara County Superior Court). In February 1998, the Superior Court found that the outreach program was an unconstitutional preference under Prop 209. That decision is on appeal.
    49. Jason B. Johnson, Unfairness Alleged in S.F. Contracts, The San Francisco Chronicle, March 30, 1998, at A13.
    50. Doug Smith, L.A. Schools to Replace Panels on Minorities, Los Angeles Times, April 14, 1998, at B1.
    51. Lungren v. Superior Court, 48 Cal. App. 4th 435, 442 (1996).
    52. Hi-Voltage WireWorks, Inc. v. City of San Jose, No. CV 768694 (Feb. 1998).
    53. Ampco System Parking v. City of Los Angeles, No. BC 189 541 (Los Angeles Superior Court) (Order, dated May 20, 1998); see also Lungren v. Superior Court, 48 Cal. App. 4th 435, 442 (1996).
    54. Equal Rights Advocates, Affirmative Action Legislative and Initiative Activity, located at www.equalrights.org.
    55. Reaching for the Dream, at 21-23.
    56. Id. at 23.
    57. Id. at 27.
    58. Id. at 28.
    59. Id. at 29.
    60. Ronald W. Powell, Women Trail in City’s Projects, San Diego Union-Tribune, April 21, 1998, at B1.
    61. Paul Ong, “Race and Gender in California’s Labor Market,” The Impact of Affirmative Action on Public-Sector Employment and Contracting in California, at 52 (1997).
    62. Sharline Chiang, Diversity at UCLA Declines, Los Angeles Daily News, April 1, 1998, at N1.
    63. M.V. Lee Badgett, “The Impact of Affirmative Action on Public-Sector Employment in California, 1970-1990,” The Impact of Affirmative Action, at 89.
    64. Id. at 88-89.
    65. Id. at 91.
    66. Institute for Women’s Policy Research, The Status of Women in California, at 34, Table 14 (1996).
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