LOOSE CANNON: Report In Opposition To The Confirmation Of Janice Rogers Brown To The United States Court Of Appeals For The DC Circuit

Affirmative Action

Hi-Voltage Wire Works, Inc. v. City of San Jose, 12 P.3d 1068 (Cal. 2000).

In Hi-Voltage Wire Works, Brown authored a majority decision that makes it extremely difficult to conduct any sort of meaningful affirmative action program in California. Some of the result in this case may have been dictated by the state’s anti-affirmative action ballot initiative, Proposition 209. Nevertheless, Brown’s decision appeared to go much farther than necessary by prohibiting California cities from requiring that their contractors conduct meaningful outreach to minority and woman owned subcontractors. Even more startling was Brown’s analysis of federal anti-discrimination and affirmative action law. 12 P.3d at 1076 - 1079. In this analysis, Justice Brown suggested that the evolution of affirmative action was somehow at odds with the purposes of Title VII of the Civil Rights Act of 1964. In making this argument, Brown relied heavily on dissenting and concurring opinions of Supreme Court justices and ignored the fact that the Court has consistently held that, under the right circumstances, affirmative action is legal under both Title VII and the U.S. Constitution.

Chief Justice Ronald George, in disagreeing with portions of the majority decision, was quite explicit in his assessment of the decision and his critique. The Chief Justice wrote:

The overall tenor of the majority opinion’s discussion of these decisions [U.S. and California Supreme Court decisions dealing with affirmative action] – including its repeated and favorable quotation from dissenting opinions in these cases and from academic commentators critical of these decisions – leaves little doubt that the majority opinion embraces the view that the types of affirmative action programs at issue in these past decisions always have violated the provisions of the federal and state equal protection clauses and Title VII, and that the numerous decisions of the United States Supreme Court and this court that reached a contrary conclusion were wrongly decided. 12 P.3d at 1093.

Chief Justice George also wrote that:
the general theme that runs through the majority opinion’s historical discussion – that there is no meaningful distinction between discriminatory racial policies that were imposed for the clear purpose of establishing and preserving racial segregation, on the one hand, and race-conscious affirmative action programs whose aim is to break down or eliminate the continuing effects of such segregation and discrimination, on the other – represents a serious distortion of history and does a grave disservice to the sincerely held views of a significant segment of our populace.12 P.3d at 1095.

Justice Brown’s opinion in the Hi-Voltage case was seen as likely to negatively impact affirmative action programs across the country, and was criticized by many as going too far. For example, a San Francisco Chronicle editorial stated that Brown’s opinion was an “overreaction to the intent of Prop. 209 and misreads the desire of many voters who wanted to uphold equal rights or merely end racial quotas....To compare affirmative action to laws designed to promote segregation, as Justice Brown’s analysis does, is absurd.” “The State Supreme Court Blunders on Prop. 209,” editorial, San Francisco Chronicle, 12/4/2000, p. A22. Similarly, UC Berkeley law professor Stephen Barnett said Brown’s opinion “was gratuitously political and divisive...a quasi-political statement [which] amounts to a vote for Proposition 209.” “Signs Point to Rifts on State High Court: Chief Justice Ronald George has tried to Build Compromise and Consensus. But a Recent Case that Triggered Four Separate Opinions Hints at Ongoing Contentiousness,” Maura Dolan, Los Angeles Times, Home Edition, 12/4/2000, p. A-3.

An article written about Brown as a potential U.S. Supreme Court nominee also focused on Brown’s opinion in Hi-Voltage:

The ruling horrified civil rights lawyers.

Eva Paterson, executive director of the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, says that, as a black woman herself, she ‘hates to criticize another black woman.”

“That having been said,” Paterson says, “if Janice Brown were a white man, I would vigorously oppose her elevation to the Supreme Court if for no other reason than her opinion in the Hi-Voltage case, which was very disturbing and had a view of civil rights which does not comport with the civil rights that I hold dear.”

“It is very painful for me to say this,” she adds, “but if I don’t speak out, other people may feel that it’s racist to speak out, and it’s not.”

“As Sharp As They Come,” Mike McKee, The Recorder, 3/3/03.An opinion piece in the San Francisco Chronicle also criticized Brown for her opinion in Hi-Voltage and specifically for using a quote from former President Jimmy Carter in a misleading way:

A newspaper that takes someone's words out of context and distorts their meaning is expected to run a correction, and usually does. A lawyer who does the same thing to a passage from a past court case is lucky to get off with just a reprimand from the judge. But when judges on the state's top court turn a quote upside down -- a quote from a former president of the United States, no less -- and don't own up to it, about all you can do is write an article like this one.... [Justice Brown] wrapped up her argument [in the Hi-Voltage case] by declaring that Californians, in passing 209, had decided to return to the principle proclaimed by then President Jimmy Carter in a 1979 speech. She quoted him: "Basing present discrimination on past discrimination is obviously not right." It's true that Carter said those words. But the text of his speech, readily available from the Jimmy Carter Library in Atlanta, shows his meaning was the opposite of Brown's. Midway through a talk delivered at the White House on May 1, 1979, Carter spoke of the need to appoint more women and minorities as federal judges. He said those efforts were thwarted when selection committees told him they couldn't find enough blacks who had served on a state court or had spent 20 years with a distinguished law firm. Accepting those criteria, the president said, would "perpetuate a travesty of justice, because basing present discrimination on past discrimination is obviously not right." Carter was not condemning affirmative action but endorsing it as a remedy for the exclusion of women and minorities.

... After discovering the discrepancy, I e-mailed the pertinent lines of the Carter speech to Brown and asked if she saw any need to set the record straight. A couple of days later, the answer came from an aide: No comment.... Courts are not infallible, but by and large, the public expects them to get it right. One law professor who thought the court should issue a corrected opinion, even at this late date, voiced the fear that the misuse of Carter's words would be perpetuated in the future if no one said anything. Consider it said.

“Setting the Court Straight: Judges Who Bury Their Mistakes,” Bob Egelko, The San Francisco Chronicle, 8/19/01, p. D5.Brown listed her opinion in Hi-Voltage as one of her ten most significant opinions.

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