Associated General Contractors v. California Department of Transportation Brief

October 31, 2011 @ One Comment

NO. 11-16228

 

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

 

ASSOCIATED GENERAL CONTRACTORS OF AMERICA,

SAN DIEGO CHAPTER, INC., a nonprofit California corporation,

Plaintiff – Appellant,

 

V.

 

CALIFORNIA DEPARTMENT OF TRANSPORTATION; WILL KEMPTON, individually and in his official capacity as Director of the California Department of Transportation; OLIVIA FONSECA, Defendants – Appellees,

 

AND

 

COALITION FOR ECONOMIC EQUITY; NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, San Diego Chapter, Intervenor-Defendants – Appellees.

 

Appeal from United States District Court for the Eastern District of California

Civil Case No. 2:09-CV-01622-JAM-GGH (Honorable John A. Mendez)

 

MOTION FOR LEAVE TO FILE AND PROPOSED BRIEF OF AMICUS CURIAE UNITED STATES JUSTICE FOUNDATION IN SUPPORT OF PLAINTIFF-APPELLANT AND REVERSAL

 

Angela C. Thompson                           Gary G. Kreep

ATTORNEY AT LAW                                       UNITED STATES JUSTICE FOUNDATION

P.O. Box 163461                                 932 D Street, Suite 3

Sacramento, CA 95816                        Ramona, CA 92065

T: (916) 642-6534                                T: (760) 788-6624

F: (916) 290-0272                                F: (760) 788-6414

 

Attorneys for Amicus Curiae United States Justice Foundation

NO. 11-16228

 

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

 

ASSOCIATED GENERAL CONTRACTORS OF AMERICA,

SAN DIEGO CHAPTER, INC., a nonprofit California corporation,

Plaintiff – Appellant,

 

V.

 

CALIFORNIA DEPARTMENT OF TRANSPORTATION; WILL KEMPTON, individually and in his official capacity as Director of the California Department of Transportation; OLIVIA FONSECA, Defendants – Appellees,

 

AND

 

COALITION FOR ECONOMIC EQUITY; NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, San Diego Chapter, Intervenor-Defendants – Appellees.

 

Appeal from United States District Court for the Eastern District of California

Civil Case No. 2:09-CV-01622-JAM-GGH (Honorable John A. Mendez)

 

MOTION FOR LEAVE TO FILE BRIEF OF AMICUS CURIAE UNITED STATES JUSTICE FOUNDATION IN SUPPORT OF PLAINTIFF-APPELLANT AND REVERSAL

 

Angela C. Thompson                           Gary G. Kreep

ATTORNEY AT LAW                                       UNITED STATES JUSTICE FOUNDATION

P.O. Box 163461                                 932 D Street, Suite 3

Sacramento, CA 95816                        Ramona, CA 92065

T: (916) 642-6534                                T: (760) 788-6624

F: (916) 290-0272                                F: (760) 788-6414

 

Attorneys for Amicus Curiae United States Justice Foundation

Amicus curiae United States Justice Foundation (USJF) hereby moves for leave to file the attached amicus brief supporting the Plaintiff-Appellant, and urging reversal of the district court’s decision in this case.

A. Interest of USJF

 

Movant USJF is a nonprofit, public interest, legal action organization dedicated to informing and educating the public on, and litigating, significant legal issues confronting America. USJF was founded in 1979 by attorneys seeking to advance a Constitutional viewpoint in the judicial arena.

Since its founding, USJF has been involved in the battle against racial discrimination across the United States, no matter what the claimed justification for said discrimination. In particular, USJF has, in class action litigation, represented tens of thousands of high school students, the vast majority of which were of Hispanic and/or African-American heritage, in challenges to policies in their school districts which violated their right to a free public education under the California State Constitution.

Moreover, USJF, representing California State legislators, was involved in the defense of California Proposition 209, which successful voter-approved initiative plays an integral part in the subject appeal.

USJF seeks to protect the rights of all individuals to be treated as equals,

 

without regard to race, gender, ethnicity, or any other inalienable characteristic.

 

1

B. Reasons Why this Amicus Brief is Desirable and Why the Matters

Asserted Herein are Relevant to the Disposition of the Case

 

1.       As an organization that has spent considerable time and effort litigating issues relevant to racial discrimination and affirmative action, USJF believes it is desirable for this Court to gain additional assistance in evaluating the Constitutional and policy issues raised by the instant case. This assistance is further desirable because Plaintiff-Appellant’s Opening Brief necessarily had to focus on the relevant questions of law, and could not address the policy issues to the extent USJF has in its proposed brief.

2.       USJF’s proposed brief focuses at length on the inherent dangers of race-conscious affirmative action—both generally and specific to Defendants- Appellees’ discriminatory practice in awarding highway construction contracts. This issue is central to the resolution of this appeal. The Court is tasked with the responsibility not only to consider the law applicable to a given case, but also to consider the potential public policy ramifications of any decision it may make— especially in a case such as this, where important civil liberties are at stake. USJF wishes to provide the Court with a source of information on this point that is unique from the arguments that have been, and will be, presented by the parties.

3.       USJF’s proposed brief offers a more thorough discussion of available

 

race-neutral alternatives than Plaintiff-Appellant was able to provide in its opening

 

2

brief. USJF believes that the additional sources of information USJF cites will be helpful to the Court in forming its opinions.

4.       USJF has sought the consent of all parties to the filing of this brief. Plaintiff-Appellant has consented to the filing of the brief. Defendants-Appellees have refused their consent to the filing of the brief. Intervenor-Defendants- Appellees have declined to take a position regarding whether they consent or object to the filing of the brief.

CONCLUSION

 

For the foregoing reasons, amicus curiae USJF respectfully requests that the Court grant its instant motion and accept for consideration the attached proposed amicus brief.

Date:  October 28, 2011                       Respectfully submitted,

 

By:     _/s/ Angela C. Thompson

Angela C. Thompson ATTORNEY AT LAW P.O. Box 163461

Sacramento, CA 95816

T: (916) 642-6534; F: (916) 290-0272

 

Gary G. Kreep

UNITED STATES JUSTICE FOUNDATION

932 D Street, Suite 3

Ramona, CA 92065

T: (760) 788-6624; F: (760) 788-6414

 

Attorneys for Amicus Curiae

United States Justice Foundation

 

3

NO. 11-16228

 

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

 

ASSOCIATED GENERAL CONTRACTORS OF AMERICA,

SAN DIEGO CHAPTER, INC., a nonprofit California corporation,

Plaintiff – Appellant,

 

V.

 

CALIFORNIA DEPARTMENT OF TRANSPORTATION; WILL KEMPTON, individually and in his official capacity as Director of the California Department of Transportation; OLIVIA FONSECA, Defendants – Appellees,

 

AND

 

COALITION FOR ECONOMIC EQUITY; NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, San Diego Chapter, Intervenor-Defendants – Appellees.

 

Appeal from United States District Court for the Eastern District of California

Civil Case No. 2:09-CV-01622-JAM-GGH (Honorable John A. Mendez)

 

BRIEF OF AMICUS CURIAE UNITED STATES JUSTICE FOUNDATION IN SUPPORT OF PLAINTIFF-APPELLANT AND REVERSAL

 

Angela C. Thompson                           Gary G. Kreep

ATTORNEY AT LAW                                       UNITED STATES JUSTICE FOUNDATION

P.O. Box 163461                                 932 D Street, Suite 3

Sacramento, CA 95816                        Ramona, CA 92065

T: (916) 642-6534                                T: (760) 788-6624

F: (916) 290-0272                                F: (760) 788-6414

 

Attorneys for Amicus Curiae United States Justice Foundation

CORPORATE DISCLOSURE STATEMENT

 

This statement is made pursuant to Federal Rule of Appellate Procedure

 

26.1. Amicus curiae United States Justice Foundation (USJF) is a nonprofit California corporation, with headquarters in Ramona, California. USJF is not a subsidiary or affiliate of a publicly owned corporation. USJF is not a publicly held corporation, trade association, or other entity having a direct financial interest in

the outcome of this litigation. There is no parent corporation or any publicly held

 

corporation that owns 10% or more of stock in USJF.

 

i

TABLE OF CONTENTS

 

Page CORPORATE DISCLOSURE STATEMENT ………………………………… i TABLE OF CONTENTS ……………………………………………………….. ii TABLE OF AUTHORITIES …………………………………………………… iv INTEREST OF THE AMICUS CURIAE ………………………………………. 1

INTRODUCTION AND SUMMARY OF ARGUMENT ……………………….. 3

 

ARGUMENT …………………………………………………………………… 3

 

A. As a Matter of Public Policy, Caltrans Should Avoid

All Forms of Race-Conscious Affirmative Action …………………….. 4

 

1.  Race-Conscious Affirmative Action Perpetuates Racial

Discrimination by Reinforcing the View of Race

as a Limiting Characteristic ……………………………………… 5

 

2.  Race-Conscious Affirmative Action Programs

Benefit the Minorities Who Need it Least ……………………… 10

 

3.  Race-Conscious Affirmative Action Programs

Unfairly Burden Non-Minorities ………………………………. 12

 

B. There are Available Race-Neutral Alternatives that Not Only Avoid the Pitfalls of Race-Conscious Programs, but Also Would Result in Substantial

Savings to California Taxpayers ………………………………………. 14

 

1.  Caltrans’ Current Practice Fails to Take Advantage

of Available Race-Neutral Alternatives ………………………… 14

 

ii

Page

 

2.  Caltrans’ Race-Based Preferences Result in Millions of Dollars in Increased Costs to California Taxpayers, While Race-Neutral Preferences Have Limited Negative

Impacts on Cost and Efficiency ………………………………… 21

 

CONCLUSION …………………………………………………………………. 25

 

CERTIFICATE OF COMPLIANCE ………………………………………….… 27

 

CERTIFICATE OF SERVICE ………………………………………………….. 28

 

iii

TABLE OF AUTHORITIES

 

Page

 

Cases

 

City of Richmond v. J. A. Croson Co., 488 U.S. 469 (1989) ……………….. passim

 

Coral Construction Company v. King County,

941 F.2d 910 (9th Cir. 1990) ………………………………………….… 16, 19, 21

 

United Steelworkers of America v. Weber, 443 U.S. 193 (1979) …….…..……… 13

 

Western States Paving Co., Inc. v. Washington State

Department of Transportation, 407 F.3d 983 (9th Cir. 2005) .…………..… passim

 

United States Statutes

 

23 U.S.C. § 101, et seq. (2006) ………………………………………………… 15

 

United States Regulations

 

49 C.F.R. § 26.51………………………………………………….……………… 15

 

49 C.F.R. § 26.51(a) ………………………………………………………….…. 16

 

49 C.F.R. § 26.51(b) …………………………………………………………. 16, 17

 

49 C.F.R. § 26.67(b) ……………………………………………………..……… 12

 

Rules of Court

 

Fed. R. App. P. 29 ……………………………………………………………… 2

 

Other Authorities

 

Stephen L. Carter, Reflections of an Affirmative Action Baby

(N. Y. Basic Books, 1991) …………………………………………..…….…… 8, 9

 



One Comment → “Associated General Contractors v. California Department of Transportation Brief”


  1. Yah Coyote

    1 year ago

    It has to be difficult when 100 applicants are all qualified for 4 positions and difficult choices must be made. The progressive detroying of the economy has forced us into these tough choices. Affirmative action simplifies the decision by eliminating many so bringing it down to say 15 applicants for 4 positions. Still tough but considerably less difficult. The disenfranchised feel rejected as the had a shot but lost it because of skin color. Let’s get progressives out of offfce and move back to which of 100 open jobs being chosen by 4 still unemployed applicants.


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