Civil rights groups, including the Lawyers' Committee for Civil Rights of the San Francisco Bay Area, the ACLUs of Northern and Southern California, Equal Rights Advocates and the Employment Law Center, have filed a lawsuit (Barlow vs. Wilson) in Alameda County Superior Court in Northern California challenging Governor Wilson's Executive Order W-172-98 which eliminates monitoring of state contracting.
ACLU of Southern California Legal Director Mark Rosenbaum said, "We bring this suit to stop Governor Wilson's cover-up of the true face of Proposition 209."
The Order, released March 10, requires all state agencies to "cease any enforcement of the minority and women business enterprise participation goals and the good faith effort requirements related thereto under Public Contract Code ﾌ_10115 et seq." In addition, that "[a]ll actions, programs and regulations which seek to monitor, promote, or comply with the minority business enterprise and women business enterprise goals or the good faith efforts thereto under PCC ﾌ_10115 et seq. shall no longer be administered and where appropriate, be repealed."
Plaintiffs charge that by ending the monitoring and reporting provisions of the code, the Governor and State are violating Article III, section 3.5 of the California constitution which requires all state agencies to implement state law, unless and until an appellate decision declares such law unconstitutional.
The Executive Order followed the recent Ninth Circuit decision in the case Monterey Mechanical v. Wilson. In that case, the Ninth Circuit Court of Appeals struck down, based on the Equal Protection Clause, Public Contract Code ﾌ_10115's requirement that contractors make good faith efforts to do outreach to women- and minority-owned firms.
Plaintiffs say the Executive Order goes beyond the elimination of affirmative action goals and outreach, and is being used to end tabulation of the number of minorities and women receiving the State's contracting business. Public Contract Code ﾌ_ 10115.5 requires that "each awarding department shall report to the Governor and the Legislature the level of participation of minority, women, and disabled veteran business enterprises in contracts."
Plaintiffs say that although the Ninth Circuit's decision does not require the State to stop monitoring and reporting on contracting with minority- and women-owned businesses, the State's latest contracting manual, updated immediately after the Executive Order, indicates that this information will no longer be collected.
The lawsuit alleges the people of California and throughout the nation have a right to information regarding the number of women and minority contractors awarded state business contracts. This information is vital determine whether women and minorities have equal access to taxpayer-funded state contracts. In the wake of Prop. 209 and the Ninth Circuit decision, civil rights groups anticipate a severe drop in the number of women and minority-owned businesses receiving state contracts. To gauge the effects of Proposition 209's ending of affirmative action, and to determine the extent to which barriers to women and minorities remain, monitoring information is obviously critical.