REVIEW PROP. 209, U.S. JUSTICES ASKED; PASADENA, N. CALIFORNIA OFFICIALS CITE ISSUES.

Byline: Associated Press 

The cities of San Francisco and Pasadena and the county of Marin asked the U.S. Supreme Court on Friday to review the constitutionality of Proposition 209, which bans race and sex preferences in public affirmative action.

The local governments, concerned about their programs for minorities and women, joined civil rights groups who earlier asked the court to review a lower-court ruling upholding Proposition 209.

The initiative, approved by the voters in November, took effect Aug. 28 when the 9th U.S. Circuit Court of Appeals ruling became final. The Supreme Court refused to block enforcement but could still decide, as early as next month, to take the case and issue a ruling by the end of its term in June.

The local governments' request said they were ``trapped between the competing hazards of liability to minorities if affirmative action is not taken to remedy apparent . . . discrimination and liability to nonminorities if affirmative action is taken.''

San Francisco grants preferences to firms owned by minorities and women seeking contracts with the city. Its ordinance has been upheld by federal courts on the grounds that the city's own studies show it has discriminated against those groups in past contracting decisions.

City officials cite the federal court rulings in contending that their program would survive Proposition 209, which contains exemptions for affirmative action programs required to comply with federal court orders or to avoid loss of federal funding. But sponsors of Proposition 209 say it conflicts with the San Francisco program.

Pasadena's program is different. The city determines which groups are underrepresented among its contractors and their workers, then puts notices in ethnically oriented newspapers and sends teams to community centers to explain how to do business with the city, said Assistant City Attorney Lawrence Newberry.

``We've tried to widen the pool,'' he said. Although contracts are awarded neutrally by race and gender, he said, the city's ``targeted outreach'' program has made the work force more diverse.

Newberry said Gov. Pete Wilson's office has declared that such programs violate Proposition 209. Pasadena believes elimination of the program would jeopardize some of its federal grants, but cannot rely on the federal-funding exception to Proposition 209 because of a narrow interpretation by Attorney General Dan Lungren's office, Newberry said.

He said the city is trying to revise its outreach program to include nonminority organizations. ``Those people already have access to us, know how to do business with the city, so it seems like kind of a meaningless gesture,'' he said.

Marin County lawyers did not return a telephone call about the case.