GOVERNOR'S OFFICE

PR97:331

WILSON UNVEILS LIST OF CURRENT STATE STATUTES WHICH GRANT RACE- OR GENDER-BASED PREFERENCES IN VIOLATION OF PROPOSITION 209 Underscores "Zero Tolerance"forD`scrimination; Legislature Should Repeal or amend Laws

FOR IMMEDIATE RELEASE Tuesday, September 9, 1997

CONTACT: Sean Walsh Lisa Kalustian 916/445~571 Lisa Wolf 213/897-0322

LOS ANGELES - Taking the next step to implement Proposition 209, Governor Pete Wilson today unveiled a list of more than 30 state statutes which grant race- or gender-based preferences in public employment, public education or public contracting and called upon the Legislature to repeal or amend the laws to conform with Proposition 209. The Govemor was joined by Ward Connerly, chairman of the American Civil Rights Institute

"We now have the opportunity to establish Califomia as America's first true color-blind society - one in which individuals are judged by the content of their character, not the color of their skin," Wilson said. "We've identified more than 30 current laws that should be repealed or rewritten because they violate Proposition 209 - they grant preferences based on race or gender."

"I'm forwarding it to the Legislature so it can begin the process of repealing or amending these statutes in order to eliminate gender- and race-based preferences which are now prohibited by Proposition 209," Wilson said. "I urge the members to make this a top priority when they reconvene in January."

The list of statutes, considered a starting point for identifying state statutes that violate the new provision of the California Constitution, was developed based on infommation received from state agencies and departments in response to the Govemor's Executive Order W-136-96, issued after Proposition 209 was passed by 54 percent of Califomia voters. The Governor indicated that some statutes do not necessarily need to be eliminated, but do need to be amended to comply with Proposition 209.

The Govemor also stated that it was a distinct possibility that independent parties would take legal action against the state because of the existence of statutes granting illegal preferences. In 1996, Wilson filed suit against five principal statutes that allocate state jobs and contracts on the basis of race and gender.

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GOX ERNOR PETE ~ rLSON! € SACRAME.NTO. CAr rFORN]~ 9~S,lA €(916) 4A',-2S41 PR97:331:2

"We've devoted the money and the muscle to assure that the same government that is colorand gender-blind does not tum a blind eye to racism," Wilson said. "We will continue to have 'zero tolerance' for discrimination." The Governor highlighted the more than 50 percent increase he has given the Department of Fair Employment and Housing's budget since 1992-93. The Department is responsible for enforcing California's civil rights laws.

"From Class Size Reduction and welfare reform to our recently-proposed California Children's Health Plan, this administration is making the long-term investments that will spawn a new generation of Californians who will be wiser, healthier and better poised to take advantage of the opportunities of a new millennium," Wilson said.

"Equal rights under the law, regardless of race or gender, is the only principle that can unify a richly diverse, multiracial society like California," Wilson said. "Equal rights under the law is our best guarantor of a future in which genuine equality of opportunity is assured to the great many, not the favored few."

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Attached is the fact sheet "Statutes Which Appear to Violate Article I, Section 31 of the California Constitution." O F F I C E OF G ~ E T E W I L S O N F A C ~ i-~ E E T

STATUTES WHICH APPEAR TO VIOLATE ARTICLE I, SECTION 31 OF THE CALIFORNIA CONSTITUTION

The list below identifies those state statutes, which, in whole or in part, appear to grant race- or gender-based preferences in the operation of public employment, public education, or public contracting in violation of Article I, Section 31 of the California Constitution. However, several caveats are in order:

First, the fact that the statute includes an unconstitutional preference does not mean the end of the underlying program. In many cases, the program can be saved through amendments that delete the offending references to preferences.

Second, the courts have not yet construed Article I, Section 31. Reasonable minds may differ as to the meaning and reach of Article I, Section 31 . Accordingly, there may be statutes not included on this list which a . lltimately deemed to violate that constitutional provision, or vice versa.

Third, the list was based on the responses received from state agencies and departments in response to Executive Order W-136-96. It directed all state agencies, departments, boards and commissions to identify all state statutes and programs that they administered which grant or encourage preferences based on race, sex, color, ethnicity or national origin in the operation of public employment, public education, or public contracting. There may be offending statutes not identified by the agencies and departments and thus not on this list.

Accordingly, the following list only reflects a reasonable interpretation of Article I, Section 31, and is simply a starting point for identifying state statutes that violate this new provision of the California Constitution. The list is subject to change as Article I, Section 31 is interpreted by the courts.

Statutes in Violarion of Prop. 209 Page I of 12

September 9, 1997 Educ. Code §§ 8630 and 8631: Section 8631 establishes the California Summer Science and Technology Academy and provides that it shall be "operated to identify public high school pupils with high academic potential in mathematics, science, and technology, with an enmphasis on females and minority members, to participate in university-based research programs." The legislative intent for this statutory program states that it is intended to assist pupils, "especially with regard to female and minority members, who have traditionally been underrepresented in these fields." While the language of this statute is ambiguous, any selection of pupils for this program based on race or gender, rather than merit or other neutral principle, would run afoul of Article I, Section 31.

Educ. Code § 8650 el seq.: These statutes enact the Science, Mathematics, and Technology Teacher Pipeline Program to 'prepare and employ traditionally underrepresented students and adults desirous of career changes as teachers of science, mathematics, and technology, through early identification, support, and assistance throughout the educational pipeline." One component of the program includes "[i]ncentives to encourage underrepresented students to pursue teaching in science, mathematics, and technology through the assumption of student loan obligations...." Section 8651 (b)(4). In developing a cadre of students with the potential to become teachers of science, mathematics, and technology, "[s]pecial emphasis will be placed on identifying and tracking science, mathematics, and technology majors in universities across the nation where underrepresented minority students are enrolled in sign)ficant numbers." Section 8651 (b)(S). The program also provides for a "[r]ecommendation to the Commission on Teacher Credentialing of altemative n~,ethods for entry into the teaching profession, including methods targeted for underrepresented persons seeking new career opportunities as a result of military reductions or economic conditions...." Section 8651 (b)(7). To the extent that pupils are selected for this program or granted incentives on the basis of race or gender, the program runs afoul of Article I, Section 31.

Educ. Code § 11003: This statute provides that, for purposes of the Califomia Academic Partnership Program (CAPP), the objective of which is to prepare all students for college, priority is afforded to those grant applications that propose projects that serve "[s]chools with low student participation in institutions of postsecondary education or with a concentration of stu~ents from groups which are underrepresented in postsecondary education, affording priority to t.~ose applicants in inverse order of their level of student participation in institutions of postsecondary education...." (Emphasis added). The selection of applications based on the race of the students at the applying schools would appear to grant preferential treatment on the basis of race and violate Article I, Section 31 of the Constitution, but the offending provision can be deleted without repealing the program.

Educ. Code §§ 44100 through 44104: Article 4 of Title 2 of the Education Code, entitled "Affrrmative Action Employment," states the Legislature's intent to remedy the employment by Califomia school districts of a "disproportionately low number of racial and ethnic minority class)fied and certificated employees and a disproportionately low number of women and members of racial and ethnic minorities in administrative positions." Section 44100. It states, further, the intent of the Legislature to "require educational agencies to adopt and implement

Statures in Violarion of Prop. 209 Page 2 of 12

September 9, 1997 plans for increasing the numbers of women and minority persons at all levels of responsibility. Id. Although the principal statute requiring aff~rmative action plans has been repealed, Section 44103 still provides that each county superintendent of schools shall assist in developing and implementing aff~rmative action plans for specified, smaller school districts. Section 44101 defines an "[a]ff~rmative action employment program" as a "conscious, deliberate step" to undertake "planned activities designed to seek, hire, and promote persons who are underrepresented in the work force compared to their number in the population, including individuals with disabilities, women, and persons of minority racial and ethnic backgrounds.... Such programs require the employer to make additional efforts to recruit, employ, and promote members of groups formerly excluded at the various levels of responsibility who are qualified or may become qualified through appropriate training or expertise within a reasonable length of time." (Emphasis added.) Further, these steps must be taken to remedy the exclusion "whatever its cause."

Thus, sections 44101 and 44103 provide for the "recruit[ment], employ[ment] and promot[ion]" of persons who are not currently qualified for a position, ahead of non-minorities or males who are currently qualified, and require "additional efforts" to employ and promote individuals of particular racial backgrounds.

Educ. Code §§ 44390 and 44391: In section 44390, the Legislature finds and declares that "in many school districts there are a number of class)fied employees, particularly minority group members, who are enrolled in, who have been enrolled in, or who would be interested in enrolling in, a teacher training program leading to a teaching credential if they were provided assistance in applying for admission and financial aid for that purpose." Section 44391, which is technically not cod)fied, but can be found in full in West's "Historical and Statutory Notes" accompaniment, establishes the California School Paraprofessional Teacher Training Program for purposes of recruiting paraprofessionals to participate in a pilot program to encourage them to enroll in a teacher training program. The legislation provides that California's Commission on Teacher Credentialing shall "require that at least 40 percent of the school paraprofessionals employed by each school district or county off~ce of education selected to participate in the pilot program are members of racial and ethnic minority groups ...." (Emphasis added). Thus, the provision imposes a direct racial quota that reserves "at least 40 percent" of the program participant slots for members of racial and ethnic minority groups.

Educ. Code § 52060 through 52065: These provisions establish the American Indian Early Childhood Education Program. Section 52060. The provisions allow the State Supenntendent of Public Instruction, with approval of the Board of Education, to apportion funds to school districts which "hav[e] a concentration of 10 percent or more of American Indian pupils" for a project in American Indian early childhood education. Such districts "shall establish a districtwide American Indian advisory committee for American Indian early childhood education." While Article I, Section 31 of the Constitution does not prohibit the development of new educational programs in rural or low-income districts, the allocation of funding based on the percentage of a certain ethnicity in a school may run afoul of the prohibition on preferential treatment on the basis of race and ethnicity in the operation of public education.

Statutes in Vfolation of Prop. 209 Page3 of 12 September 9, /997 Educ. Code § 66021.4: This statute provides that it is "the intent of the Legislature to support student financial aid programs for eligible students enrolled in teacher credential and graduate degree programs, including an emphasis on increasing the number of graduate students from currently and historically underrepresented groups...." While the language of the statute is ambiguous, it may violate Article I, Section 31 if the Legislature's intent is implemented so as to grant preferences based on race or gender.

Educ. Code §§ 66202(a)(3), 66721, 66732, and 66743: These sections grant preferences to students from historically underrepresented groups in connection with transfers to California State University or the University of California. Insofar as "historically underrepresented" groups are defined on the basis of race, sex, color, ethnicity, or national origin, such preferences are unconstitutional under Article I, Section 31.

Section 66202(a)(3) provides that, in undergraduate admissions of transfer students, the University of California and California State University "shall declare as policy . . . that students who are eligible to transfer and who are from historically underrepresented groups . . . shall be given preference, to the fullest extent possible under state and federal law, statutes, and regulations, in transfer admissions decisions, and shall design policies in conformity with state and federal statu: -c and regulations intended to facilitate their success in achieving transfer." The Legislature's ancodified findings and declarations make clear that one purpose of the transfer program is to "assist progress toward diversifying the race and ethnicity of baccalaureate degree holders."

However, Section 66202 has some saving language. It technically grants a preference only to "the fullest extent possible under state and federal law." Article I, Section 31 now makes clear that no race- or gender-based preference is possible, and thus requires that the provision be interpreted to bar any preference.

Section 66721 requires the University of California and the California State University to distribute their "transfer core curriculum" to each public school (grades 7 through 12) in the state and to each community college, "with an emphasis on the communication of that information to each school or college having a high proportion of students who are members of one or more ethnic minorities." If the transfer core curriculum is disseminated on the basis of the proportion of minority students in the public school (as opposed to neutral criteria), such dissemination would appear to constitute preferential treatment on the basis of race and run afoul of Article I, Section 31 of the Constitution.

Section 66732 requires the governing boards of the University of Califomia and the California State University to declare as policy "that the student transfer agreement program shall constitute a sign)ficant role in achieving the goal of student diversity within their segments, and in ensuring that all students, particularly those currently underrepresented in higher education, have access to a university education." The section requires the governing boards to

Stotutes in Violation of Prop. 209 Page 4 of 12 September 9, 1997 .

institute policies to effectuate these goals. If racial preferences were granted to comply with this section, it would run afoul of Article I, Section 31 of the Constitution.

Educ. Code §§ 69560 through 69567: These provisions establish the Student Opportunity and Access Program. The Student Opportunity and Access Program is administered by the Student Aid Commission, which is required to apportion funds:

"for the support of projects designed to increase the accessibility of postsecondary educational opportunities to low-income and ethnic minority elementary and secondary school students. These projects shall primarily (1) increase the availability of information for low-income and ethnic minority students on the existence of postsecondary schooling and work opportunities, and (2) raise the achievement levels of low-income and ethnic minority students so as to increase the number of high school graduates eligible to pursue postsecondary reaming opportunities. Projects may also assist low-income and ethnic minority community college students in transferring to four-year institutions...."

Section 69561. Each project is required to maintain, at project headquarters, "a comprehensive student-specific information system on low-income and ethnic minority students in grades 11 and 12 at secondary schools within the participating districts." Section 69561(e). Finally, at least 30 percent of each project grant "shall be allocated for stipends to peer advisers and tutors who . . . [w]ork with low-income and ethnic minority secondary school students." Section 69561 (f). This program becomes inoperative on June 30, 1999 and as of January 1, 2000 is repealed.

The underlying goals of this program could be achieved legitimately if the benefited class were low-income students and students from underperforrning schools or students from schools that have historically sent a low percentage of students to postsecondary educational institutions. However, the portion of the program directed at minority students grants preferential treatment in violation of Article I, Section 31 because the projects specifically target students on the basis of their race.

Educ. Code § 69640 through 69656: These sections establish the Community College Extended Opportunity Programs and Services (EOPS). They target students who are affected by "language, social, and economic disadvantages." EOPS "is intended to increase the rates of matriculation, graduation, success, and transfer to four-year institutions."

On its face, these are permissible goals. Language, social and economic disadvantages are not prohibited characteristics under Article I, Section 31.

Currently, however, section 69640(e) provides that the Board of Governors of the community colleges shall issue regulations, which, among other things, "strive to assist community colleges to meet student and employee affirmative action objectives." The regulations implementing EOPS establish priorities "to ensure that colleges strive to achieve and maintain a racial, ethnic, and gender composition among income eligible students served wnich

Starures in Violarion of Prop. 209 Page 5 of 12 Seprember 9,1997 matches the racial, ethnic, and gender composition by income group of eighteen years and above u ho reside in the college service area." 5 Cal. Code of Regs. § 56280. The regulations also provide that "priority in outreach and recruitment services shall be directed towards correcting the greatest underrepresentation among students served." § 56280(a). Because these regulations appear to recruit and select students on the basis of race and gender, they may violate Article I, Section 31 of the Constitution.

Educ. Code § 69670-69680: These provisions establish the State GraduEe Fellowship Program, which awards fellowships for graduate study to students who have demonstrated their intent to become a college or faculty member, with priority consideration given to students from "historically disadvantaged" and "underrepresented" groups. In awarding fellowships, "[t]he commission shall give priority consideration to students who are historically disadvantaged, as defined by the commission, or students from groups which are underrepresented in graduatelevel programs and among college and university faculty." Section 69674(c). According to the legislative findings, "Blacks, Asians, Native Americans, Hispanics, and females continue to be underrepresented in graduate education and among college and university faculty." Section 69670(e). In conflict with these sections, section 69674(b) provides that "[t]he commission shall award fellowships without regard to race, religion, creed, or sex." Still, the provision granting preferences to underrepresented students in awarding fellowships may run afoul of Article I, Section 31 of the California Constitution.

Educ. Code § 71028: This section requires the Board of Govemors of the California Community Colleges to adopt regulations to ensure that the Community Colleges "establish and apply the statewide participation goals for contracting with minority business enterprises and women business enterprises specified in Section 10 l l 5 of the Public Contract Code." The statewide participation goal for the California Community Colleges is based upon the total dollar amount of contracts awarded," with not less than 15 percent being awardec~ o minority business enterprises. and not less than 5 percent being awarded to women business enterprises." Public Contract Code section 10115, described below, violates Article I, Section 31.

Educ. Code § 87100-87107: These provisions require the Community Colleges to establish "aff~rmative action employment programs" for the hiring of members of racial and ethnic minorities and women. An affirmative action employment program is defined as:

"planned activities designed to seek, hire, and promote persons who are underrepresented in the work force compared to their number in the population, including handicapped persons, women, and persons of minority racial and ethnic backgrounds.... These programs require the employer to make additional efforts to recruit, employ, and promote members of groups formerly excluded at the various levels of responsibility who meet the statewide minimum qualifications, if an! and who, relative to local qualifications beyond

- the statewide minimum qualifi.ations, ~ ualif; .4 or may become qualified through appropriate training or experience with. .; reasonable length of time. The programs should be designed to remedy the exclusion, whatever its cause. Affirmative action requires imaginative, energetic, and sustained action by each employer to devise

Sta~utes in Viola~ion of Prop. 209 Page 6 of 12

September 9, /997 recruiting, training, and career advancement opporh~nities which will result in an equitable representation of women and minorities in relation to all employees of the employer." [Emphasis added.] Section 87101(a).

"Goals and timetables" must also be included in the college's plan and are defined as "projected new levels of employment of women and minority racial and ethnic groups to be attained on an annual schedule. ' Section 87101. "The governing board of each community college district shall be held accountable . . . for the success or failure of its aff~rmative action employment program." Section 87102(a).

Section 87104 provides that funds will be appropriated to assist in the adoption and maintenance of affirmative action programs. Section 87107 creates the Faculty and Staff Diversity Fund for the purpose of enabling the Community College system "to address the goal that by the year 2005 the system's work force will reflect proportionately the adult population of the state." Section 87107. The fund is also to be used to reimburse districts for the costs of preparing aff~rrnative action plans, providing "outreach and recruitment of underrepresented groups," and providing "for incentives to hire members of underrepresented groups."

These statutes grant preferences in a variety of ways. They seek to accelerate the hiring and training of only minorities and women in order to achieve a work force that proportionately reflects the adult population of the state (not the qualified applicant pool). They grant incentives only for the hiring of minorities and women. And they require additional efforts to recruit and employ minorities and women, as long as the minority or woman can "become qualified through appropriate training or experience within a reasonable length of time." Section 87101 (a).

Educ. Code § 87663(d): This section provides that the peer review process for faculty members at community colleges "shall address the forthcoming demographics of California, and the principles of aff~rmative action. The process shall require that the peers reviewing are both representative of the diversity of California and sensitive to aff~rmative action concerns, all without compromising quality and excellence in teaching." This section may be unconstitutional to the extent that the peer reviewers are chosen to participate in the peer review process because of their race, sex, color, ethnicity, or national origin, or if, in order to be "sensitive to aff~rmative action concerns," the peer review process considers race, sex, color, ethnicity, or national origin in its evaluation of the faculty member.

Gov. Code § 6522: This section extends the participation goals of Government Code section 16850 and Public Contract Code section 10115 to joint powers agencies. Specifically, the provision provides that any state department or agency entering into a joint powers agreement with a federal, county, or city government or agency in order to create a joint powers agency must ensure that the participation goals (for contracting with minority and women business enterprises) become part of the joint powers agreement and apply to contracts executed by the joint powers agency. Government Code section 16850 and Public Contract Code section 10115 themselves violate Article I, Section 31 of the Constitution.

Statutes in Violotron of Prop. 209 Page 7 of 12 September 9, /997 Gov. Code §§ 8790.70-8790.77: These provisions establish participation goals for minority and women business enterprise, in state contracts. The goals are not less than 15 percent for minority business enterpr s and not less than 5 percent for women business enterprises. See § 8790.70. If the lowest r .ponsible bidder fails to show a good faith effort in responding to the goals for contracting with minority or women business enterprises, the awarding department is required to award the contract to the next lowest responsible bidder. See § 8790.72.

Go`. Code §§ 8790.80-8790.87: These provisions establish participation goals for minority and women business enterprises in state contracts for professional bond services (unless the contract for professional bond services of an underwriter is to be obtained by competitive bid). They require each awarding department to offer participation to minority and women business enterprises in such contracts. Statewide participation goals are set at 15% and 5% for minority and women business enterprises, respectively, for contracts entered by state departments. One provision also requires departments to consider establishing cocounsel, joint venture, and subcontracting relationships with minority and women business enterprises in all contracts for bonds. See § 8790.80. The other provisions are largely analogous to §§ 8790.70-8790.77, described above.

Gov. Code § 8880.56(b)(4): This statute requires that in awarding any contract for the procurement of goods and services exceeding $500,000, the Lottery Commission and Director "shall require all bidders or contractors, or both, to include specific plans or arrangements to utilize subcontracts with socially and economically disadvantaged small business concerns." "Socially and economically disadvantaged persons" are defined as "women, Black Americans, Hispanic Americans, Native Americans. . . Asian-Pacific Americans. . . and other minorities...."

Gov. Code § 14130(e): This subsection requires the Department of TransDortation ~o nren~r"

and adopt "an aff~Tnative action plan for its management and other personnel positions which reflects the ethnic demographics of the state, taking into consideration the availability of the workforce in the various ethnic groups. The department shall m '-e genuine efforts to achieve in its workforce the ethnic and racial composition of the labor force population of the state. These efforts shall include, but not be limited to, the department's personnel hiring and recruitment policies and practices, as well as training and management development."

~ ll~l~l~llull ~o ureDare

This provision sunsets on January l, 1998. The replacement provision effective after that date does not require an aff~rmative action program.

Go`. Code § 14132: This section requires the Department of Transportation to comply with the participation goals for contracting with minority and women business enterprises under Public Contract Code §§ 10115 et seq. in connection with the Department's contracting out for services of engineers, architects, surveyors, planners, environmental specialists, and material specialists. The provision requires the Department to develop a list of qualified certified minority and women business enterprises. As noted below, Public Contract Code §§ 10115 et seq. are themselves unconstitutional.

Stotutes in Violation of Prop. 209 Poge 8 of 12

September 9, 1997 Gov. Code §§ 16850-16857: These sections set up a system of statewide participation goals for minority and women business enterprises in connection with contracts for professional bond sen ices. The goals are not less than 15 percent for minority business enterprises and 5 percent for women business enterprises during the year.

Gov. Code § 19130(a)(4) and (a)(8): Section 19130 provides that personal services contracting is permissible to acnieve cost savings when certain conditions are met. Subsections 19130(a)(4) and (a)(8) establish, as two of those conditions, that "[t]he contract does not adversely affect the state's affirmative action efforts," and that "[t]he contract includes . . . assurance that the contractor's hiring practices meet applicable . . . affirmative action standards." If these conditions are applied so as to encourage the state to prefer minority or women business enterprises, they may violate Article I, Section 31 of the California Constitution.

Gov. Code § 19790-19799: Section 19790 requires each state agency and depart~nent to establish "an effective affirmative action program" in its civil service. The provisions require each agency and department to establish "goals and timetables designed to overcome any identified underutilization of minorities and women in their respective organizations." Section 19790. Goals are the ';projected level of achievement resulting from an analysis by the employer of its deficiencies in utilizing minorities and women." Underutilization of minorities and women, which must be corrected, is the employment of "fewer persons of a particular group in an occupation or at a level of a department than would be expected by their availability."

Health & Saf. Code §§ 128330 through 128370: These sections establish the Minority Health Professions Education Foundation, which is to solicit and receive funds for purposes of providing financial assistance in the form of scholarships or loans to "Black students, Hispanic/Latino students, Native American Indian students, and other students from underrepresented minority groups." The Foundation also has a number of other responsibilities, including recommending a "standard contractual agreement" to require a period of obligated professional sen ice by a participating student in areas of California designated as deficient in primary care service. These statutes also create a Minority Health Professions Education Fund, which provides scholarships and loans to students "from underrepresented minority groups who are accepted to or enrolled in schools of medicine, dentistry, nursing, or other health professions."

Article I, Section 31 does not prohibit a contractual condition that a scholarship student agree to provide professional services in areas designated as deficient in primary care, but to the extent that these statutes grant financial assistance for public education on the basis of race, Article I, Section 31 would appear to be violated.

Health & Saf. Code §§ 128375 through 128405: These sections establish the Registered Nurse Education Program. The intent of the program is to "[e]ncourage persons from populations that are currently underrepresented in the nursing profession to enter that profession[, and e]ncourage professional nurses to work in medically underserved areas." Section 128380.

Stotutes in Violation of Prop. 209 Page 9 of 1~ September 9, 1997 Section 128385 provides: ". . . Persons participating in this program shall be either persons from demographically underrepresented groups or persons who agree in writing prior to graduation to serve in an eligible county health facility or a health manpower shortage area Persons from demographically underrepresented groups may apply for awards for persons agreeing to serve in eligible county health facilities or health manpower shortage areas." [Emphasis added.] Section 128385(a). The program offers scholarships, educational loans, and loan repayment programs for students in the nursing profession. The article sunsets on Januar,v 1, 2000.

Accordingly, while it is permissible to provide financial assistance to those who agree to serve medically underserved areas, the provision granting a preference in the award of financial assistance to persons based on their race is not.

Health & Sa£ Code §§ 128425 e' seq.: These sections create the Geriatric Nurse Practitioner and Clinical Nurse Specialist Scholarship Program within the Minority Health Professions Education Foundation. The Program is to be administered in accordance with the provisions of the Registered Nurse Education Program above and thus suffers from the same defects.

Labor Code § 1777.5: This section imposes an aff~rmative action obligation on joint apprenticeship committees, which grant certification to contractors and subcontractors awarded contracts by the state or its political subdivisions and which arrange for the dispatch of apprentices to the contractors and subcontractors. The section states: "There shall be an affirrnative duty upon the joint apprenticeship committee or committees administering the apprenticeship standards of the craft or trade in the area of the site of the public work to ensure equal employment and affirmative action in apprenticeship for women and minorities." This section is vague, but may run afoul of Article I, Section 31 if implemented in a fashion that grants preferences on the basis of race or gender in the operation of public contracting.

Labor Code § 3075.1: This section encourages the establishment of apprenticeship programs -in the work forces of state and local agencies and requires such programs to be "fully compatible with affirrnati~ e action goals for the participation of minorities and women in apprenticeship programs." Again, while vague, if this is implemented in a fashion that grants preferences, it would run afoul of Article I, Section 31 of the California Constitution.

Penal Code § S075: This section establishes the composition of the Board of Prison Terms. Regarding the selection of Commissioners, the provision states: "The selection of persons and their appointment by the Governor and confirmation by the Senate shall reflect as nearly as possible a cross-section of the racial, sexual, economic, and geographic features of the population of the state." --

Public Contract Code §§ 2000 and 2001: Section 2000 provides that, notwithstanding any requirement that a local agency award contracts to the lowest responsible bidder, a local agency may require contracts to be awarded to the lowest responsible bidder who "[m]eets goals and requirements established by the local agency relating to participation in the contract by minority

Stotures in Vi~'lation of Prop. 209 Page 10 of 12

September 9, 1997

business enterprises and women business enterprises.... [or m]akes a good faith effort ... to comply with the goals and requirements established by the local agency ...." To create a rebuttable presumption of good faith, the bidder must identify those items of the project which will be performed by minority or women business enterprises, advertise for such firms not less than 10 days before bids are opened, provide written notice to such enterprises as required by the agency, request assistance from minority and women community organizations, negotiate in good faith with such enterprises, and not "unjust)fiably" reject bids prepared by such enterprises "as determined by the local agency." Section 2001 sets out the information about minority participation that must be provided by bidders on contracts covered by local agencies' preference programs.

This statutory requirement grants preferential treatment to minority and women business enterprises in violation of Article I, Section 31 of the California Constitution.

Pub. Cont. Code §§ 2051-2057: These sections provide definitions and establish certification processes that lay the groundwork for preferences for minority, women, and disadvantaged business enterprises found in other sections of the Public Contract Code.

Specifically, section 2050 expresses the legislative intent that any awarding department for purposes of public contract work must accept any state or local agency certification for minority, women, or disadvantaged business enterprises if that certification meets federal standards.

Section 2051 defines "minority," "minority business enterprise," "women business enterprise," and "disadvantaged business enterprise."

Section 2052 states, in part, that all awarding departments shall accept certifications by any participating state agency whose criteria meets federal standards and that such certifications shall be deemed suff~cient to qualify minority, women, and disadvantaged business enterprises for contracts funded by the federal, state or local government.

Section 2053 provides, in part, that a participating state or local agency shall certify a minority, women, or disadvantaged business enterprise if it fits within the definitions thereof under section 2051 in accordance with federal eligibility standards.

Section 2054 prescribes the form of certification, among other things.

Section 2055 provides, in part, procedures for an agency to challenge the certification of a minority or women business enterprise.

Section 2056 provides for a computerized data bank of information about certified minority, women, or disadvantaged business enterprises.

Srarures in Violarion of Prop. 209 Page 11 of 12

Seprember 9, 1997 Section 2057 provides that this chapter shall not apply to professional services contracts subject to Chapter 6 of the Government Code.

Pub. Cont. Code § 10108.7: This section imposes contracting procedures for the Department of Corrections and provides that any person making a bid or offer to perform a contract must, in his or her bid or offer, set forth both "[t]he name and the location of the place of business of each subcontractor certified as a minority, women, or disabled veteran business enterprise who will perform work or labor or render service to the pri~ne contractor in connection with the performance of the contract and who will be used by the prime contractor to furfill minority, women, and disabled veteran business enterprise participation goals" and the portion of the work that will be done by each such subcontractor.

Pub. Cont. Code §§ 10115-10115.15: These sections establish minority and women business participation goals for state contracts for construction, professional services, materials, repairs, supplies, equipment, alterations, or improvements. The sections require State agencies or departments to establish a goal that 15% of the value of the contract work be provided to minority enterprises business and 5% of the value be provided to women business enterprises. Under Section 10115.2, the awarding department shall award contracts to the lowest responsible bidder who meets these goals or who, in the discretion of the agency, has made good faith efforts to meet the goals. To be deemed to have made a good faith effort, the bidder must provide documentary evidence that contact was made with the department to identify minority and women business enterprises, that contact was made ~vith other state and federal agencies and ~vith local minority and women business enterprises to identify such enterprises, that advertising was published seeking such enterprises, that invitations to bid were submitted to such enterprises, and that they were considered. Section l 01 15.2

Street & Highways Code Sec. 180.1: This section makes seismic retrofit projects subject to Public Contract Code Sec. 101 l 5 et seq., as to projects not subject to certain federal regulations. Public Contract Code Sec. l 01 15 et seq., as described above, grant unconstitutional preferences.

Welf. & Inst. Code Sec. 1717(b): Section 1717 provides the qualifications for persons appointed to the Youthfi~l Offender Parole Board. Among other things, "The selection of persons and their appointment by the Governor and confirmation by the Senate shall reflect as nearly as possible a cross section of the racial, sexual, economic, and geographic features of the state. '

Statutes in Violation of Prop. 209 Page 12 of 12

September 9, 1997