Letting Former California Supreme Court Justice Stanley Mosk Have the Final Word on Today's United States Supreme Court Decisions on Affirmative Action

Where should those of us who value diversity and equality in American life go from here?

There is no shortage of legal commentators who are offering analysis of today’s United States Supreme Court decisions holding that race-based affirmative action at Harvard and the University of North Carolina are unconstitutional under the Fourteenth Amendment.¹ Some are distraught and lamenting what the Court has done, while others are clearly elated and celebrating the decision.

But there is one very important voice that is unfortunately missing: That of former California Supreme Court Justice Stanley Mosk.

For those who are unfamiliar, Stanley Mosk served on the California Supreme Court from 1964 to 2001. He previously served as Democratic Attorney General of California from 1958 through 1964. And he initially served as a Los Angeles County Superior Court Judge, where in 1947 he was the first judge in American history to hold that a court could not enforce a racially restrictive housing covenant.²

Justice Mosk is largely responsible for ending most governmental discrimination in California and ensuring the illegality of private discrimination in California - not just on the basis of race, but on the basis of sex or gender, sexual orientation, gender identity, religion, and immigration status. Much of modern life in California, free of discrimination in both the public and private sector on these bases, is a result of his work.

It is an understatement to say that Justice Mosk, the man who desegregated California, was one of the most brilliant judges to ever serve on the bench - any bench. If a judicial version of Mount Rushmore is ever constructed, he certainly belongs on it.

Justice Mosk died 22 years ago but his opinions on affirmative action are as relevant as ever.

That’s because what the United States Supreme Court did today is merely follow California’s path, at least in regards to higher education admissions. Today’s decision is actually the legal regime that California has followed for the past 27 years. Not only can race and gender not be considered in higher education admissions, race and gender cannot be used in almost any aspect of governance.³

Yet, California has continued to successfully pursue diversity and equality both legally and constitutionally.⁴ And Justice Mosk is largely responsible for that.

So, instead of analyzing today’s affirmative action cases, I am elevating Justice Mosk’s voice by reposting his concurring opinion in Hi-Voltage Wire Works, Inc. v. City of San Jose.⁵ Handed down in 2000, that case confirmed that California would diverge from the rest of the country by getting rid of race and gender as factors for consideration in nearly all governmental decisions.⁶

Reposted below in full is Justice Mosk’s concurrence in Hi-Voltage Wire Works, Inc. v. City of San Jose:⁷

“I concur in the opinion of the court.

I write separately because, on one point, I wish to say somewhat more.

I

I agree with the court in the substance of its analysis, which involves its reading of section 31 of article I of the California Constitution (section 31) and its application to the City of San Jose’s “Nondiscrimination/Nonpreferential Treatment Program” applicable to public contracts for construction projects in excess of $ 50,000.

A

By initiative measure denominated as Proposition 209 on the ballot at the November 5, 1996, General Election, and approved by the voters thereat, section 31 was added to article I of the California Constitution.

Section 31 provides that “[t]he 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.” (Cal. Const., art. I, § 31, subd. (a).) It defines the “State” to “include, but not necessarily be limited to, the State itself, any city, county, city and county, public university system, including the University of California, community college district, school district, special district, or any other political subdivision or governmental instrumentality of or within the State.” (Id., art. I, § 31, subd. (f).)

Stated negatively, section 31 prohibits governmental actors from improperly burdening or benefiting any individual or group in the operation of public employment, public education, or public contracting. The prohibition is not limited to barring such actors from improperly assigning burdens or benefits themselves. Rather, it extends to barring them from enabling, facilitating, encouraging, or requiring private parties to do so as well. For the operation of each of the indicated activities involves private parties as well as governmental actors--in other words, the operation of each entails the cooperation of both. One of section 31’s purposes is to preclude any invidious barrier or privileged entrance to participation.

Stated positively, section 31 commands governmental actors to treat all individuals and groups equally in the operation of public employment, public education, and public contracting. The command is not limited to compelling governmental actors to afford equal treatment themselves. Rather, it extends to compelling governmental actors to enable, facilitate, encourage, and require private parties to do so as well. Again, the operation of each of the indicated activities involves private parties as well as governmental actors, the operation of each entailing the cooperation of both. One of section 31’s purposes is to remove all invidious barriers and privileged entrances to participation.

Neither section 31’s prohibition against the improper assigning of any burden or benefit in the operation of public employment, public education, or public contracting, nor its command of equal treatment therein, is limited solely to ends. Rather, both extend to means as well. Thus, one may not assign any burden or benefit improperly in an attempt to assign some other burden or benefit properly. Similarly, one may not afford treatment that in any respect is unequal in an attempt to afford treatment that in some other respect is equal. For section 31 at least, the end does not justify the means. Rather, means and end must each justify itself in light of section 31’s prohibition and command.

B

On October 21, 1997, through its city council, the City of San Jose adopted its “Nondiscrimination/Nonpreferential Treatment Program” applicable to public contracts for construction projects in excess of $ 50,000. It did so in response to “evidence that discriminatory practices existed in construction subcontracting” for public works on the part of prime contractors and evidently the city itself with regard to subcontracting firms that are owned by women or members of minority groups. It sought to remedy the effects of past discrimination and preferential treatment, and to prevent present or future discrimination or preferential treatment, in the operation of public subcontracting.

The city’s program requires a prime contractor bidding on a covered public works contract, among other things, “to demonstrate nondiscrimination/nonpreferential treatment . . . in the hiring of subcontractors” before he can become eligible to be awarded the contract in question.

Specifically, the city’s program requires the prime contractor to make a demonstration of nondiscrimination/nonpreferential treatment by providing, as he may choose, either “documentation of outreach” or “documentation of participation.”

Under the documentation-of-outreach component, which is relatively more burdensome, the prime contractor must “provide[] written notice . . . of his . . . interest in bidding on the contract” in question “to not less than four” subcontracting firms that are owned by women or members of minority groups “in each appropriate trade or area of work or supply . . . at least 10 calendar days prior to the opening of bids”; must “follow[] up” such “written notices by contacting” each such firm “to determine with certainty whether” it is “interested in proposing to perform specific items of the project,” “document[ing] the name of an individual employee of each . . . firm with whom” he “spoke concerning the project or the date and time of at least three . . . attempts during regular business hours to contact each . . . firm”; and must “negotiate[] in good faith with” each such firm and “not unjustifiably reject” any ensuing bid “as unsatisfactory.” (Underscoring omitted.)

By contrast, under the documentation-of-participation component, which is relatively less burdensome, the prime contractor must “document[] the participation of” subcontracting firms that are owned by women or members of minority groups meeting the “percentage of” such firms that the city has “establishe[d], as an evidentiary presumption,” as the “percentage . . . that would be expected to be included . . . in the absence of discrimination” or preferential treatment.

After review, it becomes evident that, in both its documentation-of-outreach and its documentation-of-participation components, the city’s program violates section 31.

To be sure, the end that the city’s program seeks is altogether legitimate and even necessary under section 31.

The purpose of the city’s program accords with, and is indeed compelled by, the purpose of section 31. As stated, the program’s object is to remedy the effects of past discrimination and preferential treatment, and to prevent present or future discrimination or preferential treatment, in the operation of public subcontracting. As also stated, section 31’s object is to remove and preclude any and all invidious barriers and privileged entrances to participation in the operation of activities including public contracting.

Nevertheless, despite the legitimacy and even necessity of its end, the means that the city’s program employs offend section 31.

The documentation-of-outreach component of the city’s program, with which a prime contractor who so chooses must comply in order to establish eligibility, requires the prime contractor to grant preferential treatment to subcontracting firms that are owned by women or members of minority groups. As explained, it requires him to provide written notice of his interest in bidding on the contract in question to no fewer than four subcontracting firms that are owned by women or members of minority groups in each pertinent trade or area of work or supply at least 10 calendar days prior to the opening of bids, to follow up such written notice with documentation of his efforts, and to negotiate in good faith and not unjustifiably reject as unsatisfactory any bid that may be forthcoming. It does not require him to take any of these steps otherwise. It thereby skews the process in favor of subcontracting firms that are owned by women or members of minority groups. Not only does it invite those firms into the process, it also guarantees that they will be dealt with well during its course, and will not be ushered out without reason at its end. It does not do the same for others.

The documentation-of-participation component of the city’s program, with which a prime contractor who so chooses must comply in order to establish eligibility, at least encourages the prime contractor to grant preferential treatment to subcontracting firms that are owned by women or members of minority groups. As explained, it requires him to meet the “evidentiary presumption” that the city has established as the percentage of such firms that would be expected to be included in the absence of discrimination or preferential treatment. It at least encourages him to select such firms in such percentage when all other things are equal--and even when they are not--in order to avoid the need to comply with the more burdensome documentation-of-outreach component. It thereby skews the outcome in favor of subcontracting firms that are owned by women or members of minority groups. Inclusion of those firms can help the prime contractor obtain award of the contract in question. Inclusion of others cannot.

In sum, the means that the city’s program employs through its documentation-of-outreach and documentation-of-participation components offend section 31 because they either require or at least encourage a prime contractor to grant preferential treatment to subcontracting firms that are owned by women or members of minority groups.

II

Although I agree with the court in the substance of its analysis, on a single point I would go farther than it does.

In a strict sense, it is sufficient to read section 31 soundly and apply it to the city’s program correctly.

But, as a practical matter, to do so is hardly enough. It gives scant guidance to the city itself or to other governmental actors. Some such guidance seems appropriate and even needed. Passivity is not demanded by section 31. Nor can it even be tolerated. Not only does section 31 prohibit governmental actors from improperly burdening or benefiting any individual or group in the operation of activities including public contracting, in order to preclude any invidious barrier or privileged entrance to participation. But it also commands such actors to treat all individuals and groups equally, in order to remove all such barriers and entrances.

By way of guidance, we may perhaps use the city’s program as a template for a measure that would satisfy section 31 in both its end and its means by retaining only its documentation-of-outreach component, and by modifying that component as follows.

A prime contractor would have to provide written notice of his interest in bidding on the contract in question to no fewer than, say, 10 subcontracting firms of his own choosing in each pertinent trade or area of work or supply at least 10 calendar days prior to the opening of bids, noting the identity of the owner or owners of each such firm--all to be reflected on a form to be filed as a public record. He would have to follow up such written notice with documentation of his efforts--again, all to be reflected on a form to be filed as a public record. And he would have to negotiate in good faith and not unjustifiably accept as satisfactory, or reject as unsatisfactory, any bid that may be forthcoming, stating his reasons for accepting or rejecting each--yet again, all to be reflected on a form to be filed as a public record.

Such a documentation-of-outreach component would be consistent with section 31’s prohibition that governmental actors must not themselves improperly burden or benefit any individual or group in the operation of activities including public contracting, or enable, facilitate, encourage, or require private parties to do so. It would also be consistent with section 31’s command that such actors must themselves treat all individuals and groups equally, and enable, facilitate, encourage, and require such parties to do so.

A documentation-of-outreach component like the above might prove to be an effective mechanism for prophylaxis. It would cause the prime contractor, one would hope, to rationalize his subcontracting conduct and thereby afford the commanded equal treatment and avoid the prohibited improper benefiting or burdening.

Furthermore, a documentation-of-outreach component like the above might prove to be an effective mechanism for monitoring. It would cause the prime contractor to make a public record of his subcontracting conduct and thereby provide evidence of compliance or noncompliance, as the case may be.

It is true that such a documentation-of-outreach component would require the prime contractor to note the identity of the owner or owners of each subcontracting firm to which he chooses to provide written notice. But it would hardly require him to improperly benefit any such firm or burden any other or to afford treatment that is at all unequal--or even encourage, facilitate, or enable him to do so. For it would work solely as a prophylactic and monitoring device, furthering the component’s prophylactic and monitoring function.

III

In conclusion, concurring as I do in the opinion of the court, I concur in its judgment affirming the judgment of the Court of Appeal.”

What you have just read has been a foundational blueprint for California governance. Many government agencies in California read Justice Mosk’s above concurrence and implemented his suggestions or enacted other creative policies inspired by it.

Today’s Supreme Court ruling on affirmative action is unlikely to change many minds on this contentious issue. Nor is it likely to resolve the underlying issues that led to these policies in the first place, even though they can no longer be implemented.

However, Justice Mosk’s concurring opinion provides great clarity as to what public policy can be under a legal regime where the government cannot ever use race or gender. For those of us who care greatly about diversity and equality in American life, his concurrence gives guidance as to the direction we can take going forward under the Court ruling announced today.

Thus, I am happy to give Justice Mosk the final word.

1. The author of this article is an attorney licensed to practice in the State of California and the District of Columbia. This article and all of the works on this Substack page are statements of the opinions of the author, only, and do not constitute legal advice; they are not intended to be relied upon by any individual or entity in any transaction or other legal matter, past, pending, or future. A paid subscription to this Substack page supports the author’s scholarship and provides access to research that the author has compiled, but does not establish an attorney-client relationship. The author does not accept unsolicited requests for legal advice or representation, and this Substack page is not intended as legal advertising. The opinions expressed on this Substack page reflect the personal views of the author only.

2. https://www.latimes.com/archives/la-xpm-2007-nov-11-me-then11-story.html; https://jewishjournal.com/commentary/opinion/82463/