THE PEOPLE'S CHOICE LEADERS ARE THWARTING PROP. 209'S INTENT.

Byline: Harold Johnson 

``WHAT part of ``No'' don't you understand?''

That quip, sometimes seen on T-shirts, might come to mind when you consider the many local governments that act as if they don't understand Proposition 209, the anti-discrimination initiative passed by California voters in 1996.

Proposition 209 says ``No'' to quotas and special benefits because of skin color. It says government may not ``discriminate against or grant preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin'' in public employment, education or contracting.

A simple, clear directive. But not clear enough, it seems, for many bureaucrats and elected officials around the state. A survey last year by Pacific Legal Foundation found scores of cities, counties, school districts and utility agencies defying Proposition 209 by continuing to impose racial preferences.

One of the violators is San Jose, whose public-works contracting program was the focus of a widely monitored hearing before the California Supreme Court on Wednesday. The case of Hi-Voltage Wire Works vs. San Jose marks the first time that California's high court has been called on to interpret the scope of Proposition 209, so the case carries implications possibly for hundreds of local jurisdictions.

The issue boils down to whether San Jose (and, by extension, other government entities) can get away with racial preferences by deceptively calling them ``outreach'' efforts.

San Jose requires general contractors either to meet precise racial quotas in the hiring of subcontractors or to undertake recruitment aimed only at minority subcontractors, whether or not those subcontractors are genuinely disadvantaged.

This is not outreach in the real sense; it does not reach out to the entire spectrum of subcontracting businesses. Rather, it requires favoritism for a narrow slice of the community, based on race.

The questions and comments from the bench Wednesday indicated that most members of the Supreme Court understand that such preferences can't be squared with Proposition 209.

Justice Joyce Kennard labeled one of the San Jose requirements an unconstitutional ``quota'' mandate. She also read from an article by University of Southern California law professor Erwin Chemerinsky (a Proposition 209 opponent) in which he warned, prior to the initiative's enactment, that it would invalidate programs with features like San Jose's.

Justice Kathryn Werdegar noted that a 1996 legislative analyst's report also indicated Proposition 209 would outlaw such programs.

Chief Justice Ronald George asked whether a city could fashion an effective outreach program that would not merely target selected racial groups. Of course it could, replied Sharon Browne, a Pacific Legal Foundation attorney who argued the case against San Jose. City officials could recruit through general advertising or by instituting telephone hotlines, she suggested.

They could also run workshops to help businesses negotiate the complexities of the contracting process.

The point is, real outreach isn't about giving competitive advantages because of race. It tries to ensure that all business enterprises - regardless of color or ethnicity - are treated equally by government.

A decision in the San Jose case is due from the Supreme Court within 90 days. Although most of the justices seem to understand the principles at stake, there are still a couple of aspects of the litigation that leave a sour taste.

One is the involvement of Attorney General Bill Lockyer. He chose this case to make his first-ever appearance in oral argument before the Supreme Court. But instead of standing up for Proposition 209, as one might expect the state's chief law enforcement officer to do, he tried to undermine it.

He urged that it be read to permit San Jose's racially targeted policies. Lockyer claimed to be arguing on behalf of ``the people,'' but he was not representing the millions who voted for Proposition 209 precisely because it promised to ban deviations from fairness and equal application of the law.

The Clinton administration has also intruded in the case. The Justice Department filed a friend-of-the-court brief that tries to coach localities on getting around Proposition 209. It claims that if a local government gins up a report alleging past discrimination, federal law may demand race preferences as a remedy. This argument is non-starter; the U.S. Supreme Court has never mandated new discrimination as a response to old discrimination in the contracting field.

Still, the administration is lending aid and comfort to all those jurisdictions that insist on acting as if Proposition 209 was written in disappearing ink.

U.S. Census figures now show that whites are no longer a majority in California. When every racial group is now a ``minority,'' aren't racial spoils systems more ludicrous - and more dangerous - than ever?

Defining individuals by skin color and apportioning advantages on that basis is a sure formula for pitting people and groups against each other.

This was the recognition underlying Proposition 209. Thankfully, after Wednesday's Supreme Court hearing, there is hope that the justices are ready to declare that 209, and its insistence on a colorblind ethic in the public sector, can no longer be contemptuously ignored.

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Photo: (1 -- color) no caption (Silhouettes)

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(2 -- color) Attorney General Bill Lockyer defends the city of San Jose against allegations that its minority ``outreach'' program violates Proposition 209.

Dan Krauss/Associated Press