Connerly v. State Personnel Board (92 Cal. App. 4th 16, 2001)

Court of Appeal of the State of California 2001-09-04

Citations

Full opinion text

Opinion

SCOTLAND, P. J.

In this case, we consider whether five statutory programs that fall within the general rubric of “affirmative action” violate state and federal principles of equal protection and are contrary to article I, section 31, of our state Constitution, added by the adoption of Proposition 209 at the November 1996 General Election (hereafter Proposition 209).

The litigation, commenced by Governor Pete Wilson in his official capacity as Governor, challenges the statutory schemes on the ground that they impermissibly establish classifications and preferences based on race, ethnicity, and gender. The statutes at issue are Government Code section 8880.56, applicable to the State Lottery Commission; Government Code sections 16850 through 16857, applicable to the sale of state bonds; Government Code sections 19790 through 19799, applicable to the state civil service; Education Code sections 87100 through 87107, applicable to the California Community Colleges; and Public Contract Code sections 10115 through 10115.15, applicable to state contracting.

Plaintiff Ward Connerly (hereafter plaintiff) was later permitted to join the lawsuit as a taxpayer litigant, and he continued the litigation after Governor Wilson left office.

The trial court found invalid a portion of the statutory scheme applicable to the sale of government bonds and all of the statutory scheme applicable to state contracting, but otherwise rejected plaintiff’s constitutional objections.

Plaintiff appeals from the judgment to the extent that it rejects his constitutional challenge to the statutory schemes. The real parties in interest cross-appeal, asserting that the data collection and reporting requirements applicable to state contracting may be severed from the remainder of the statutory scheme and upheld. In addition, respondent California Community Colleges raises the initial question whether plaintiff has standing to pursue this action.

We conclude (1) plaintiff has standing to maintain this litigation; (2) the statutory scheme applicable to the state lottery is invalid; (3) the statutory scheme applicable to the sale of government bonds is invalid, but a portion of the data collection and reporting requirements of the scheme may be severed and upheld; (4) the statutory scheme applicable to the state civil service is partially invalid, but the remainder of the scheme may be severed and upheld; (5) the statutory scheme applicable to the community colleges is invalid; and (6) a portion of the data collection and reporting requirements of the statutory scheme applicable to state contracting may be severed from the invalid portions of the scheme and upheld.

As we will explain, the statutory schemes at issue here were enacted over many years, some more than 20 years ago, during a time when the manner of applying equal protection principles to affirmative action programs was not settled. It has now been held that all racial classifications imposed by a governmental entity must be analyzed using the strict scrutiny standard of review. And, under our state Constitution, strict scrutiny applies to gender classifications. In addition, Proposition 209 imposes additional restrictions against racial and gender preferences and discriminatory actions.

Insofar as the challenged statutory schemes utilize race and gender classifications, we have reviewed them under strict scrutiny and Proposition 209, with the results that we have detailed above. Because our conclusion differs in some respects from the trial court’s rulings, we shall reverse the judgment and remand with directions to enter a new judgment consistent with this opinion.

Discussion

I

We begin by rejecting the claim that plaintiff lacks standing to pursue this litigation. According to the California Community Colleges, the decision in Cornelius v. Los Angeles County etc. Authority (1996) 49 Cal.App.4th 1761 [57 Cal.Rptr.2d 618] “suggests that [plaintiff’s] state taxpayer status should not permit him to proceed; this challenge should be deferred in favor of persons with an actual injury.” We disagree.

California’s Constitution, unlike its federal counterpart, does not contain a “case or controversy” limitation on the judicial power. (National Paint & Coatings Assn. v. State of California (1997) 58 Cal.App.4th 753, 761 [68 Cal.Rptr.2d 360]; see Lujan v. Defenders of Wildlife (1992) 504 U.S. 555, 560 [112 S.Ct. 2130, 2136, 119 L.Ed.2d 351, 364] [among other things, to establish a case or controversy under federal law, a plaintiff must have suffered an “ ‘injury in fact’ ” that is “concrete,” “particularized,” and “ ‘actual or imminent, not “conjectural” or “hypothetical” ’ ”].) Therefore, restrictive federal rules of justiciability do not necessarily apply in state courts. (White v. Davis (1975) 13 Cal.3d 757, 763 [120 Cal.Rptr. 94, 533 P.2d 222].) In particular, there are two related rules of standing applicable in state court actions that are contrary to the rules in federal courts—the right to maintain an action as a taxpayer, and the right to maintain an action as a citizen.

Code of Civil Procedure section 526a permits a taxpayer to bring an action to restrain or prevent an illegal expenditure of public money. No showing of special damage to a particular taxpayer is required as a requisite for bringing a taxpayer suit. (White v. Davis, supra, 13 Cal.3d at p. 764.) Rather, taxpayer suits provide a general citizen remedy for controlling illegal governmental activity. (Id. at p. 763.)

Citizen suits may be brought without the necessity of showing a legal or special interest in the result where the issue is one of public right and the object is to procure the enforcement of a public duty. (Green v. Obledo (1981) 29 Cal.3d 126, 144 [172 Cal.Rptr. 206, 624 P.2d 256].) Citizen suits promote the policy of guaranteeing citizens the opportunity to ensure that governmental bodies do not impair or defeat public rights. (Ibid.)

Taxpayer suits and citizen suits are closely related concepts of standing. (See Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 439 [261 Cal.Rptr. 574, 777 P.2d 610].) The chief difference is a taxpayer suit seeks preventative relief, to restrain an illegal expenditure, while a citizen suit seeks affirmative relief, to compel the performance of a public duty. (Ibid.) Where standing appears under either rule, the action may proceed regardless of the label applied by the plaintiff. (Ibid.)

Statutorily enacted affirmative action programs are matters of intense public concern. (Department of Corrections v. State Personnel Bd. (1997) 59 Cal.App.4th 131, 143 [69 Cal.Rptr.2d 34].) Hence, a claim that such a program violates principles of equal protection and Proposition 209 is precisely the type of claim to which citizen and taxpayer standing rules apply.

Moreover, plaintiff’s pursuit of this litigation is consistent with the purpose of a standing requirement, which is to ensure that courts address actual controversies between parties who have sufficient adverse interests to press their case with vigor. (Common Cause v. Board of Supervisors, supra, 49 Cal.3d at p. 439.) This case has been litigated intensely, and there is no danger here that the court will be misled by the failure of the parties to adequately explore and argue the issues. (Van Atta v. Scott (1980) 27 Cal.3d 424, 450 [166 Cal.Rptr. 149, 613 P.2d 210].)

The California Community Colleges suggest that we should deny standing to plaintiff because application of the challenged statutory schemes will produce potential plaintiffs with personal beneficial interests in the matter who will be entitled to pursue their own actions. However, “[n]umerous decisions have affirmed a taxpayer’s standing to sue despite the existence of potential plaintiffs who might also have had standing to challenge the subject actions or statutes.” (Van Atta v. Scott, supra, 27 Cal.3d at pp. 447-448, fn. omitted.)

Citing the decision in Cornelius v. Los Angeles County etc. Authority, supra, 49 Cal.App.4th 1761, 1774-1779, the California Community Colleges argue that we should apply a restrictive definition of “taxpayer” in order to deny taxpayer standing to plaintiff. But that case involved an action against a local government entity by a person who lacked standing as an individual, who was not a resident of the county and did not pay property taxes to the county, and whose state taxes bore only a tangential relationship to the challenged program. Whatever might be the merits of indulging in a restrictive definition of “taxpayer” in such circumstances, the decision is inapposite.

At oral argument, respondents added to their argument on the issue of standing. They assert that this proceeding is in mandate, that mandate addresses conduct rather than the validity of legislation, and that plaintiff cannot proceed in mandate without introducing proof that respondents are in fact engaging in unconstitutional behavior. We reject this contention for three separate reasons. First, it was raised for the first time at oral argument. (Rebney v. Wells Fargo Bank (1990) 220 Cal.App.3d 1117, 1138, fn. 6 [269 Cal.Rptr. 844].) Second, mandate can be used to test the constitutional validity of a legislative enactment. (Floresta, Inc. v. City Council (1961) 190 Cal.App.2d 599, 612 [12 Cal.Rptr. 182]; see, e.g., Hollman v. Warren (1948) 32 Cal.2d 351, 357, 360 [196 P.2d 562]; Driving Sch. Assn, of Cal. v. San Mateo Union High Sch. Dist. (1992) 11 Cal.App.4th 1513, 1517, 1521-1525 [14 Cal.Rptr.2d 908].) Third, to the extent respondents suggest that we should deny plaintiff standing to challenge the statutory schemes because agencies subject to those schemes may perform their duties in a constitutional manner by either ignoring the statutory directives or by engaging in a strained interpretation thereof, the argument overlooks a critical principle of law. As we will explain more fully in subsequent portions of this opinion, an administrative agency lacks the authority to cure a facially unconstitutional statute by refusing to enforce it as written.

Here, plaintiff challenges statutory schemes enacted by the Legislature for application throughout the state and which as written, and unless restrained, will result in the expenditure of state funds consistent with their application. Plaintiff’s status as a state taxpayer is sufficient to confer taxpayer standing in these circumstances.

II

Before we decide whether the statutory programs challenged by plaintiff violate state and federal principles of equal protection and are contrary to Proposition 209, it is helpful to provide, at the outset, an overview of the rules of law that we must apply in addressing plaintiff’s attack on the statutes.

A

The equal protection clause of the Fourteenth Amendment to the United States Constitution is succinct: “No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” California’s Constitution is equally terse: “A person may not be . . . denied equal protection of the laws.” (Cal. Const., art. I, § 7, subd. (a).)

Although our state constitutional guarantee is independent of the federal guarantee, in the context of this case it is, with one exception, applied in a manner identical with the federal guarantee. (DeRonde v. Regents of University of California (1981) 28 Cal.3d 875, 889-890 [172 Cal.Rptr. 677, 625 P.2d 220].) The one exception is with respect to gender. Under federal law, distinctions based on gender are subjected to heightened judicial scrutiny, but gender is not a suspect classification, as is race. (See United States v. Virginia (1996) 518 U.S. 515, 532 [116 S.Ct. 2264, 2275, 135 L.Ed.2d 735, 751].) Under California law, classifications based on gender are considered suspect for purposes of equal protection analysis. (Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 37 [219 Cal.Rptr. 133, 707 P.2d 195]; Sail’er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 20 [95 Cal.Rptr. 329, 485 P.2d 529, 46 A.L.R.3d 351].)

Following its adoption, the federal equal protection clause “was relegated to decades of relative desuetude” while the courts adjudicated rights under notions of substantive due process. (University of California Regents v. Bakke (1978) 438 U.S. 265, 291 [98 S.Ct. 2733, 2743-2744, 57 L.Ed.2d 750, 772], lead opn. of Powell J. (hereafter Bakke II).) With the demise of “the era of substantive due process,” the equal protection clause began to attain a “measure of vitality.” (Id. at pp. 291-292 [98 S.Ct. at p. 2749, 57 L.Ed.2d at p. 772].) In the early development of principles of equal protection, the landmark decisions arose in response to actions that discriminated against minorities, most often African-Americans. (Id. at p. 294 [98 S.Ct. at p. 2750, 57 L.Ed.2d at p. 773].)

Development of equal protection jurisprudence established that the constitutional guarantee applies to governmental classifications, whether they be legislative, executive, judicial, or administrative. Legislative classification is the act of specifying who will and who will not come within the operation of a particular law. (Dare v. Bd. of Medical Examiners (1943) 21 Cal.2d 790, 802 [136 P.2d 304]; In re Cardinal (1915) 170 Cal. 519, 521 [150 P. 348]; County of Los Angeles v. Hurlbut (1941) 44 Cal.App.2d 88, 93 [111 P.2d 963].)

A legislative classification satisfies equal protection of law so long as persons similarly situated with respect to the legitimate purpose of the law receive like treatment. (Brown v. Merlo (1973) 8 Cal.3d 855, 861 [106 Cal.Rptr. 388, 506 P.2d 212, 66 A.L.R.3d 505].)

Legislative classifications generally are entitled to judicial deference, are presumptively valid, and may not be rejected by the courts unless they are palpably unreasonable. (Asbury Hospital v. Cass County (1945) 326 U.S. 207, 215 [66 S.Ct. 61, 65, 90 L.Ed. 6, 13]; County of L.A. v. Southern Cal. Tel. Co. (1948) 32 Cal.2d 378, 392 [196 P.2d 773].) However, judicial deference does not extend to laws that employ suspect classifications, such as race. Because suspect classifications are pernicious and are so rarely relevant to a legitimate governmental purpose (Richmond v. J. A. Croson Co. (1989) 488 U.S. 469, 505 [109 S.Ct. 706, 727-728, 102 L.Ed.2d 854, 889] (hereafter Croson)), they are subjected to strict judicial scrutiny; i.e., they may be upheld only if they are shown to be necessary for furtherance of a compelling state interest and they address that interest through the least restrictive means available. (Bernal v. Fainter (1984) 467 U.S. 216, 219-220 [104 S.Ct. 2312, 2315-2316, 81 L.Ed.2d 175, 179-180]; Weber v. City Council (1973) 9 Cal.3d 950, 958 [109 Cal.Rptr. 553, 513 P.2d 601].)

With the advent of affirmative action programs, it was inevitable that so-called reverse discrimination cases would come before the courts. In a series of cases, the United States Supreme Court has addressed the question.

In Bakke II, supra, 438 U.S. 265 [98 S.Ct. 2733, 57 L.Ed.2d 750], the court affirmed a decision of the California Supreme Court (Bakke I, supra, 18 Cal.3d 34), insofar as it held a race-based admissions program unlawful, but reversed insofar as it precluded the school from giving any consideration to race in the admissions process.

In Wygant v. Jackson Board of Education (1986) 476 U.S. 267 [106 S.Ct. 1842, 90 L.Ed.2d 260] (hereafter Wygant), the court invalidated a public school layoff scheme under which nonminority teachers were laid off while minority teachers with less seniority, including probationary teachers, were retained.

In Croson, supra, 488 U.S. 469 [109 S.Ct. 706, 102 L.Ed.2d 854], the court invalidated a city contract scheme that provided a “set-aside” for minority business enterprises.

In Adarand Constructors, Inc. v. Pena (1995) 515 U.S. 200 [115 S.Ct. 2097, 132 L.Ed.2d 158] (hereafter Adarand), the court held that, pursuant to the equal protection component of the Fifth Amendment, a federal contracting scheme that employed race-based presumptions must be judged under the same strict scrutiny standards applicable to state and local governments.

Then, in a series of cases following the 1990 census, the court found various race-based congressional reapportionment schemes to be invalid. (Shaw v. Hunt (1996) 517 U.S. 899 [116 S.Ct. 1894, 135 L.Ed.2d 207]; Shaw v. Reno (1993) 509 U.S. 630 [113 S.Ct. 2816, 125 L.Ed.2d 511]; see also Hunt v. Cromartie (1999) 526 U.S. 541 [119 S.Ct. 1545, 143 L.Ed.2d 731]; Bush v. Vera (1996) 517 U.S. 952 [116 S.Ct. 1941, 135 L.Ed.2d 248]; Miller v. Johnson (1995) 515 U.S. 900 [115 S.Ct. 2475, 132 L.Ed.2d 762].)

The opinions filed in those cases demonstrate the difficulty that the United States Supreme Court has had in applying equal protection principles to affirmative action programs. The cases generally have resulted in multiple opinions from the justices. Although the court has not upheld any of the programs under consideration in those cases, the various opinions indicate that race-based governmental programs are not per se invalid but that, to be constitutionally valid, they must withstand the stringent test of strict judicial scrutiny.

From those opinions, we can distill certain principles that have been endorsed by a majority of the United States Supreme Court and must guide our consideration of the validity of the statutory schemes involved here.

The equal protection clause recognizes that distinctions between persons based solely upon their ancestry “ ‘are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.’ [Citation.]’’ (Shaw v. Reno, supra, 509 U.S. at p. 643 [113 S.Ct. at p. 2824, 125 L.Ed.2d at p. 526] (maj. opn.); Bakke II, supra, 438 U.S. at pp. 290-291 [98 S.Ct. at pp. 2748-2749, 57 L.Ed.2d at p. 771] (lead opn.).) Accordingly, the core purpose of the equal protection clause is to eliminate govemmentally sanctioned racial distinctions. (Croson, supra, 488 U.S. at p. 495 [109 S.Ct. at pp. 722-723, 102 L.Ed.2d at p. 883] (plur. opn.); Wygant, supra, 476 U.S. at p. 277 [106 S.Ct. at pp. 1848-1849, 90 L.Ed.2d at p. 270] (plur. opn.).) Where the government proposes to assure participation of “some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected not as insubstantial but as facially invalid. Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids.’’ (Bakke II, supra, at p. 307 [98 S.Ct. at p. 2757, 57 L.Ed.2d at p. 782] (lead opn.); see also Croson, supra, at p. 497 [109 S.Ct. at pp. 723-724, 102 L.Ed.2d at p. 884] (plur. opn.).)

The duty of governmental entities to “eliminate every vestige of racial segregation and discrimination,” and their ultimate duty to “ ‘do away with all govemmentally imposed discriminations based on race,’ ” are not always harmonious. (Wygant, supra, 476 U.S. at p. 277 [106 S.Ct. at p. 1848, 90 L.Ed.2d at p. 270] (plur. opn.).) Because the rights guaranteed by the Fourteenth Amendment are not absolute, government may be permitted, in an appropriate case, to make remedial use of racial classifications. (Adarand, supra, 515 U.S. at p. 237 [115 S.Ct. at pp. 2117-2118, 132 L.Ed.2d at p. 188] (maj. opn.).) However, under long-standing principles of equal protection, governmental distinctions based on race are considered inherently suspect and are subjected to strict scrutiny. (Adarand, supra, 515 U.S. at pp. 223, 227 [115 S.Ct. at pp. 2110-2111, 2112-2113, 132 L.Ed.2d at pp. 179, 182] (maj. opn.); Shaw v. Reno, supra, 509 U.S. at pp. 643-644 [113 S.Ct. at pp. 2824-2825, 125 L.Ed.2d at p. 526] (maj. opn.); Croson, supra, 488 U.S. at p. 494 [109 S.Ct. at p. 722, 102 L.Ed.2d at p. 882] (plur. opn.).)

The strict scrutiny standard of review applies regardless of whether a law is claimed to be benign or remedial (see Shaw v. Reno, supra, at p. 653 [113 S.Ct. at p. 2830, 125 L.Ed.2d at p. 533] (maj. opn.); Adarand, supra, at p. 226 [115 S.Ct. at p. 2112, 132 L.Ed.2d at p. 181] (maj. opn.)), regardless of the race of those burdened or benefited by a particular classification (Shaw v. Reno, supra, at pp. 650-651 [113 S.Ct. at pp. 2828-2829, 125 L.Ed.2d at p. 531] (maj. opn.); Croson, supra, at p. 494 [109 S.Ct. at p. 722, 102 L.Ed.2d at p. 882] (plur. opn.)), and regardless of whether the law may be said to benefit and burden the races equally (Shaw v. Reno, supra, at p. 651 [113 S.Ct. at p. 2829, 125 L.Ed.2d at p. 531] (maj. opn.)).

And the strict scrutiny standard of review does not depend on semantic distinctions, such as “goal” rather than “quota.” What is constitutionally significant is that the government has drawn a line on the basis of race or has engaged in a purposeful use of racial criteria. (Bakke II, supra, 438 U.S. at p. 289, & fn. 27 [98 S.Ct. at p. 2747, 57 L.Ed.2d at p. 770] (lead opn.).) A constitutional injury occurs whenever the government treats a person differently because of his or her race. (Adarand, supra, 515 U.S. at pp. 211, 229-230 [115 S.Ct. at pp. 2104, 2105, 2113-2114, 132 L.Ed.2d at pp. 171, 183] (maj. opn.).)

In applying the strict scrutiny test, it must be remembered that the rights created by the equal protection clause are not group rights; they are personal rights which are guaranteed to the individual. (Adarand, supra, 515 U.S. at p. 227 [115 S.Ct. at pp. 2112-2113, 132 L.Ed.2d at p. 182] (maj. opn.); Bakke II, supra, 438 U.S. at p. 289 [98 S.Ct. at pp. 2747-2748, 57 L.Ed.2d at p. 770] (lead opn.).) Thus, where an individual is denied an opportunity or benefit or otherwise suffers a detriment as a result of a race-based governmental scheme, it is no answer that others of his or her race secured the opportunity or benefit or avoided the detriment.

When a governmental scheme uses a racial classification, the action is not entitled to the presumption of constitutionality which normally accompanies governmental acts. (Croson, supra, 488 U.S. at p. 500 [109 S.Ct. at p. 725, 102 L.Ed.2d at p. 886] (maj. opn.).) “A governmental actor cannot render race a legitimate proxy for a particular condition merely by declaring that the condition exists,” and “blind judicial deference to legislative or executive pronouncements of necessity has no place in equal protection analysis.” (Id. at pp. 500-501 [109 S.Ct. at p. 725, 102 L.Ed.2d at p. 886] (maj. opn.).)

A racial classification is presumptively invalid, and the burden is on the government to demonstrate extraordinary justification. (Shaw v. Reno, supra, 509 U.S. at pp. 643-644 [113 S.Ct. at p. 2824-2825, 125 L.Ed.2d at p. 526]. (maj. opn.); Bakke II, supra, 438 U.S. at pp. 305, 311 [98 S.Ct. at pp. 2756, 2759, 57 L.Ed.2d at pp. 781, 784] (lead opn.).) In order to justify a racial classification, the government “ ‘must show that its purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is “necessary ... to the accomplishment” of its purpose or the safeguarding of its interest.’ [Citations.]” (Bakke II, supra, at p. 305 [98 S.Ct. at p. 2756, 57 L.Ed.2d at p. 781] (lead opn.).)

Judicial review focuses on whether the racial classification is justified by a compelling governmental interest and whether the means chosen are narrowly tailored to serve that interest. (Wygant, supra, 476 U.S. at p. 274 [106 S.Ct. at p. 1847, 90 L.Ed.2d at p. 268] (lead opn.).)

Under the strict scrutiny test, governmental specificity and precision are demanded. The mere recitation of a benign or legitimate purpose is entitled to little or no weight. (Croson, supra, 488 U.S. at p. 500 [109 S.Ct. at p. 725, 102 L.Ed.2d at p. 886] (maj. opn.).) “Racial classifications are suspect, and that means that simple legislative assurances of good intention cannot suffice.” (Id. at p. 500 [109 S.Ct. at p. 725, 102 L.Ed.2d at p. 886] (maj. opn.).) Moreover, generalized assertions of purpose are insufficient since they provide little or no guidance for the legislative body to narrowly tailor its use of a suspect classification and because they inhibit judicial review under the strict scrutiny test. (Id. at p. 498 [109 S.Ct. at p. 724, 102 L.Ed.2d at p. 885] (maj. opn.).) Because racial distinctions “ ‘so seldom provide a relevant basis for disparate treatment, and because classifications based on race are potentially so harmful to the entire body politic, it is especially important that the reasons for any such classification be clearly identified and unquestionably legitimate.’ [Citation.]” (Id. at p. 505 [109 S.Ct. at pp. 727-728, 102 L.Ed.2d at p. 889] (maj. opn.).)

Accordingly, before embarking upon a program that utilizes racial classifications, a governmental entity must identify its purpose with some degree of specificity (Croson, supra, 488 U.S. at p. 504 [109 S.Ct. at p. 727, 102 L.Ed.2d at p. 889] (maj. opn.)) and must have convincing evidence that race-based remedial action is necessary. (Shaw v. Hunt, supra, 517 U.S. at p. 910 [116 S.Ct. at p. 1903, 135 L.Ed.2d at p. 222] (maj. opn.); Wygant, supra, 476 U.S. at pp. 277-278 [106 S.Ct. at pp. 1848-1849, 90 L.Ed.2d at p. 271] (plur. opn.).) Absent a prior determination of necessity, supported by convincing evidence, the governmental entity will be unable to narrowly tailor the remedy, and a reviewing court will be unable to determine whether the race-based action is justified. (Croson, supra, at p. 510 [109 S.Ct. at pp. 730-731, 102 L.Ed.2d at p. 893] (plur. opn.); Wygant, supra, at p. 278 [106 S.Ct. at p. 1849, 90 L.Ed.2d at p. 271] (plur. opn.).)

Once a compelling interest is shown, the inquiry focuses on the means chosen to address the interest. It is not enough that the means chosen to accomplish the purpose are reasonable or efficient. (Wygant, supra, 476 U.S. at p. 279 [106 S.Ct. at pp. 1849-1850, 90 L.Ed.2d at p. 272] (plur. opn.).) Only the most exact connection between justification and classification will suffice. (Adarand, supra, 515 U.S. at p. 236 [115 S.Ct. at p. 2117, 132 L.Ed.2d at p. 188] (maj. opn.); Wygant, supra, at p. 280 [106 S.Ct. at p. 1850, 90 L.Ed.2d at p. 273] (plur. opn.).) The classification must appear necessary rather than convenient, and the availability of nonracial alternatives—or the failure of the legislative body to consider such alternatives— will be fatal to the classification. (Croson, supra, 488 U.S. at p. 507 [109 S.Ct. at p. 729, 102 L.Ed.2d at p. 891] (maj. opn.).) In addition, the use of a racial classification must be limited in scope and duration to that which is necessary to accomplish the legislative purpose. (Croson, supra, at p. 510 [109 S.Ct. at pp. 730-731, 102 L.Ed.2d at p. 893] (plur. opn.).) For example, in Wygant, it was asserted that a school board’s interest in providing role models for its minority students could justify a race-based layoff scheme. The plurality opinion noted that nondiscriminatory hiring practices would in time achieve the desired result, while discriminatory practices based upon the role model theory would have no logical stopping point and could even lead to the thoroughly discredited separate-but-equal educational system. (Wygant, supra, at pp. 274-276 [106 S.Ct. at pp. 1847-1848, 90 L.Ed.2d at pp. 269-270] (plur. opn.).)

“A State’s interest in remedying the effects of past or present racial discrimination may in the proper case justify a government’s use of racial distinctions.” (Shaw v. Hunt, supra, 517 U.S. at p. 909 [116 S.Ct. at p. 1902, 135 L.Ed.2d at p. 221] (maj. opn.).) However, it bears repeating that, in order to rise to the level of a compelling state interest, the use of racial classifications to remedy specific discrimination must meet two criteria.

First, the discrimination must be identified with some degree of specificity. (Shaw v. Hunt, supra, 517 U.S. at p. 909 [116 S.Ct. at pp. 1902-1903, 135 L.Ed.2d at p. 221] (maj. opn.).) A generalized assertion that there has been discrimination in a particular industry or region is insufficient (ibid.; Croson, supra, 488 U.S. at pp. 498-499 [109 S.Ct. at pp. 724-725, 102 L.Ed.2d at p. 885] (maj. opn.)), and mere statistical anomalies, without more, do not permit a governmental entity to employ racial classifications. (Croson, supra, at pp. 501-503 [109 S.Ct. at pp. 725-727, 102 L.Ed.2d at pp. 887-888] (maj. opn.).) “[T]he sorry history of both private and public discrimination in this country” (id. at p. 499 [109 S.Ct. at p. 724, 102 L.Ed.2d at p. 885] (maj. opn.)) does not justify an effort by government to alleviate, by use of racial distinctions, the effects of societal discrimination generally. (Ibid.; Shaw v. Hunt, supra, at p. 909 [116 S.Ct. at pp. 1902-1903, 135 L.Ed.2d at p. 221] (maj. opn.).) And “a racial classification cannot withstand strict scrutiny based upon speculation about what ‘may have motivated’ the legislature. . . . [T]he State must show that the alleged objective was the legislature’s ‘actual purpose’ for the discriminatory classification . . . .” (Shaw v. Hunt, supra, at p. 908, fn. 4 [116 S.Ct. at p. 1902, 135 L.Ed.2d at p. 221] (maj. opn.).)

Second, “the institution that makes the racial distinction must have had a ‘strong basis in evidence’ to conclude that [race-based] remedial action was necessary, ‘before it embarks on an affirmative-action program,’ [citation].” (Shaw v. Hunt, supra, 517 U.S. at p. 910 [116 S.Ct. at p. 1903, 135 L.Ed.2d at p. 222] (maj. opn.), original italics; Croson, supra, 488 U.S. at p. 504 [109 S.Ct. at p. 727, 102 L.Ed.2d at p. 889] (maj. opn.).) A governmental entity cannot satisfy this criterion simply by conceding past discrimination. (Wygant, supra, 476 U.S. at p. 278, fn. 5 [106 S.Ct. at p. 1849, 90 L.Ed.2d at pp. 271-272] (plur. opn.).) While in an appropriate case, statistical analysis may be valuable evidence, governmental entities do not have “license to create a patchwork of racial preferences based on statistical generalizations about any particular field of endeavor.” (Croson, supra, at p. 499 [109 S.Ct. at p. 725, 102 L.Ed.2d at p. 885] (maj. opn.).)

Moreover, in order to be lawful, the governmental use of racial classification to redress specific discrimination must actually be remedial. (Shaw v. Hunt, supra, 517 U.S. at p. 915 [116 S.Ct. at p. 1905, 135 L.Ed.2d at p. 225] (maj. opn.).) In this respect, the remedy must be created with the awareness that the right to be free of discrimination belongs to the individual rather than any particular group. (Id. at p. 917 [116 S.Ct. at p. 1906, 135 L.Ed.2d at p. 226] (maj. opn.).) Thus, the remedy must be designed as nearly as possible to restore the victims of specific discriminatory conduct to the position they would have occupied in the absence of such conduct. (Id. at p. 915 [116 S.Ct. at p. 1905, 135 L.Ed.2d at p. 225] (maj. opn.).) Random inclusion of racial groups without individualized consideration whether the particular groups suffered from discrimination will belie a claim of remedial motivation. (Croson, supra, 488 U.S. at p. 506 [109 S.Ct. at p. 728, 102 L.Ed.2d at p. 890] (maj. opn.); Wygant, supra, 476 U.S. at p. 284, fn. 13 [106 S.Ct. at p. 1852, 90 L.Ed.2d at p. 275] (plur. opn.).) The lack of any effort to limit the benefits of a remedial scheme to those who actually suffered from specific discrimination will be fatal to the scheme. (Croson, supra, at p. 508 [109 S.Ct. at pp. 729-730, 102 L.Ed.2d at p. 891] (maj. opn.).)

B

Respondent California Community Colleges argues that, insofar as the challenged statutory schemes operate for the benefit of women, they are subject to intermediate scrutiny rather than the strict scrutiny applicable to racial classifications.

The United States Supreme Court has not held gender to be a suspect classification, like race or national origin. Instead, the court applies “skeptical scrutiny” to gender classifications. (United States v. Virginia, supra, 518 U.S. at p. 531 [116 S.Ct. at pp. 2274-2275, 135 L.Ed.2d at p. 750].) The linguistic formulation of skeptical scrutiny closely parallels that of strict scrutiny. Thus, there is a strong presumption that gender classifications are invalid and they must be carefully inspected by the courts. (Id. at pp. 532-533 [116 S.Ct. at pp. 2275-2276, 135 L.Ed.2d at p. 751].) The burden of justification is demanding, is entirely upon the government, and must be exceedingly persuasive. (Ibid.) The government must show that the challenged classification serves important governmental objectives and that the means employed are substantially related to the achievement of those objectives. (Id. at p. 533 [116 S.Ct. at pp. 2275-2276, 135 L.Ed.2d at p. 751].) “The justification must be genuine, not hypothesized or invented post hoc in response to litigation,” and “must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.” (Ibid.) While this standard is similar to the strict scrutiny standard applicable to racial classifications, it is recognized as a somewhat more lenient standard of review. (See Bakke II, supra, 438 U.S. at pp. 302-303 [98 S.Ct. at pp. 2754-2755, 57 L.Ed.2d at p. 779] (lead opn.).)

However, our state Supreme Court has concluded that, under the equal protection guarantee of California’s Constitution, gender is a suspect classification subject to strict scrutiny review. (Koire v. Metro Car Wash, supra, 40 Cal.3d at p. 37; Sail’er Inn, Inc. v. Kirby, supra, 5 Cal.3d at p. 20.)

In view of the difference between state and federal equal protection principles in this respect, respondent California Community Colleges would have us establish a two-level system of equal protection review, with the level of scrutiny dependent upon the gender of the complaining party. But to do so would ignore the guarantee of equal protection that applies to judicial actions as well as to those of the legislative and executive branches. (See J. E. B. v. Alabama ex rel. T. B. (1994) 511 U.S. 127, 129, 140 [114 S.Ct. 1419, 1421-1422, 1426-1427, 128 L.Ed.2d 89, 97, 104].)

The United States Supreme Court consistently has rejected the notion that the degree of equal protection accorded an individual can be based upon the person’s race or gender. As Justice Powell explained, “[t]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to [another] .... If both are not accorded the same protection, then it is not equal.” (Bakke II, supra, 438 U.S. at pp. 289-290 [98 S.Ct. at p. 2748, 57 L.Ed.2d at pp. 770-771] (lead opn.).) The fact that a statutory scheme “discriminates against males rather than against females does not exempt it from scrutiny or reduce the standard of review.” (Mississippi University for Women v. Hogan (1982) 458 U.S. 718, 723 [102 S.Ct. 3331, 3335-3336, 73 L.Ed.2d 1090, 1097-1098]; see also J. E. B. v. Alabama ex rel. T. B., supra, 511 U.S. at p. 141 [114 S.Ct. at pp. 1427-1428, 128 L.Ed.2d at pp. 104-105].)

We cannot establish different levels of equal protection for men and women out of gender prejudice and/or gender paternalism. No justification for a two-level, gender-based standard of review has been offered, and we perceive none. In fact, in rejecting a claim that it is permissible to offer promotional discounts which favor women, the California Supreme Court concluded “public policy in California mandates the equal treatment of men and women.” (Koire v. Metro Car Wash, supra, 40 Cal.3d at p. 37, original italics.)

Consequently, we conclude that, while the federal Constitution does not require strict scrutiny for gender classifications, our state Constitution mandates strict scrutiny without regard to the gender of the complaining party.

C

In addition to equal protection principles, we must apply the dictates of Proposition 209.

Article I, section 31, subdivision (a) of the Constitution of our state provides: “The 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.” Subdivision (f) provides that, “[f]or the purposes of this section, ‘State’ shall 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.”

In Hi-Voltage Wire Works, Inc. v. City of San Jose (2000) 24 Cal.4th 537 [101 Cal.Rptr.2d 653, 12 P.3d 1068] (hereafter Hi-Voltage), the California Supreme Court construed Proposition 209 in accordance with the ordinary meaning of its words. (Id. at p. 559.) To discriminate means “ ‘to make distinctions in treatment; show partiality (in favor of) or prejudice (againsff [citation] . . . .” (Id. at pp. 559-560.) Giving preferential treatment “means giving ‘preference,’ which is ‘a giving of priority or advantage to one person . . . over others.’ [Citation.]” (Id. at p. 560, fn. omitted.)

In adopting Proposition 209, the voters “intended to reinstitute the interpretation of the Civil Rights Act and equal protection that predated [the decisions in Steelworkers v. Weber (1979) 443 U.S. 193 [99 S.Ct. 2721, 61 L.Ed.2d 480], Price, supra, 26 Cal.3d 257, and other cases],” by prohibiting the state from classifying individuals by race or gender. (Hi-Voltage, supra, 24 Cal.4th at p. 561.)

The court in Hi-Voltage addressed the city’s minority business enterprise and women business enterprise (MBEAVBE) contracting scheme. Under that plan, a contractor bidding to do business with the city was required to either achieve a certain MBE/WBE subcontractor participation level or show that it complied with certain outreach requirements. The court noted: “The outreach component requires contractors to treat MBE/WBE subcontractors more advantageously by providing them notice of bidding opportunities, soliciting their participation, and negotiating for their services, none of which they must do for non-MBE’s/WBE’s. The fact prime contractors are not precluded from contacting non-MBE’s/WBE’s is irrelevant. The relevant constitutional consideration is that they are compelled to contact MBE’s/ WBE’s, which are thus accorded preferential treatment within the meaning of section 31.” (Hi-Voltage, supra, 24 Cal.4th at p. 562.)

In holding the program to be invalid, the court observed: “The participation component authorizes or encourages what amounts to discriminatory quotas or set-asides, or at least race- and sex-conscious numerical goals. [Citations.] A participation goal differs from a quota or set-aside only in degree; by whatever label, it remains ‘a line drawn on the basis of race and ethnic status’ as well as sex.” (Hi-Voltage, supra, 24 Cal.4th at pp. 562-563.)

Although finding the city’s outreach program unconstitutional under Proposition 209, the court acknowledged “that outreach may assume many forms, not all of which would be unlawful.” (Hi-Voltage, supra, 24 Cal.4th at p. 565.) “Plainly, the voters intended to preserve outreach efforts to disseminate information about public employment, education, and contracting not predicated on an impermissible classification.” (Ibid.) However, the court expressed “no opinion regarding the permissible parameters of such efforts.” (Ibid.)

It can be seen that Proposition 209 overlaps, but is not synonymous with, the principles of equal protection that we have described in part II. A., ante. Under equal protection principles, all state actions that rely upon suspect classifications must be tested under strict scrutiny, but those actions which can meet the rigid strict scrutiny test are constitutionally permissible. Proposition 209, on the other hand, prohibits discrimination against or preferential treatment to individuals or groups regardless of whether the governmental action could be justified under strict scrutiny.

In this respect, the distinction between what the federal Constitution permits and what it requires becomes particularly relevant. (See Shaw v. Reno, supra, 509 U.S. at p. 654 [113 S.Ct. at pp. 2830-2831, 125 L.Ed.2d at p. 533] (maj. opn.).) To the extent the federal Constitution would permit, but not require, the state to grant preferential treatment to suspect classes, Proposition 209 precludes such action. (Hi-Voltage, supra, 24 Cal.4th at p. 567 [Prop. 209 contains no compelling state interest exception].)

D

The complaining party bears the initial and ultimate burden of establishing unconstitutionality. (Wygant, supra, 476 U.S. at pp. 277-278 [106 S.Ct. at pp. 1848-1849, 90 L.Ed.2d at p. 271] (plur. opn.).) But when the plaintiff has made a sufficient showing to trigger strict scrutiny review, the burden of justification is both demanding and entirely upon the government. (Bakke II, supra, 438 U.S. at p. 306 [98 S.Ct. at pp. 2756-2757, 57 L.Ed.2d at p. 781] (lead opn.); Sail’er Inn, Inc. v. Kirby, supra, 5 Cal.3d at pp. 16-17; see also United States v. Virginia, supra, 518 U.S. at p. 533 [116 S.Ct. at p. 2275, 135 L.Ed.2d at p. 751] [under intermediate scrutiny applicable under federal law to gender classifications, “[t]he burden of justification is demanding and it rests entirely on the State”].) If the government succeeds in establishing justification for the use of a suspect classification, the burden shifts back to the complaining party to show that the statutory scheme or its application is nevertheless unconstitutional.

In this case, plaintiff employs the easiest means by which strict scrutiny is triggered. Laws that explicitly distinguish between individuals on racial grounds fall within the core of the prohibition of the equal protection clause and “[n]o inquiry into legislative purpose is necessary when the racial classification appears on the face of the statute.” (Shaw v. Reno, supra, 509 U.S. at p. 642 [113 S.Ct. at p. 2824, 125 L.Ed.2d at p. 525] (maj. opn.).) Express racial classifications are immediately suspect, are presumptively invalid, and, without more, trigger strict scrutiny review. (Id. at pp. 642-644 [113 S.Ct. at pp. 2824-2825, 125 L.Ed.2d at pp. 525-526] (maj. opn.); see also Adarand, supra, 515 U.S. at p. 227 [115 S.Ct. at pp. 2112-2113, 132 L.Ed.2d at p. 182] (maj. opn.); Bakke II, supra, 438 U.S. at p. 289 [98 S.Ct. at pp. 2747-2848, 57 L.Ed.2d at p. 770] (lead opn.).)

To the extent the statutory schemes challenged by plaintiff employ express racial and gender classifications, he has met his initial burden by pointing that out.

Respondents assert that, because plaintiff makes a facial attack on the constitutionality of the statutory schemes at issue, the statutes are presumed constitutional and must be upheld unless plaintiff demonstrates constitutional conflict in every conceivable application. We disagree. (American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 345-348 [66 Cal.Rptr.2d 210, 940 P.2d 797].)

Where a statutory scheme, on its face, employs a suspect classification, the scheme is, on its face, in conflict with the core prohibition of the equal protection clause. (Shaw v. Reno, supra, 509 U.S. at p. 642 [113 S.Ct. at p. 2824, 125 L.Ed.2d at p. 525] (maj. opn.).) It is not entitled to a presumption of validity and is instead presumed invalid. (Id. at pp. 643-644 [113 S.Ct. at pp. 2824-2825, 125 L.Ed.2d at p. 526] (maj. opn.); Croson, supra, 488 U.S. at p. 500 [109 S.Ct. at p. 725, 102 L.Ed.2d at p. 886] (maj. opn.).) And the express use of suspect classifications in a statutory scheme immediately triggers strict scrutiny review. (Shaw v. Reno, supra, at pp. 642-644 [113 S.Ct. at pp. 2824-2825, 125 L.Ed.2d at pp. 525-526] (maj. opn.).)

Under the strict scrutiny test, specificity and precision are required. (Croson, supra, 488 U.S. at pp. 500, 505 [109 S.Ct. at pp. 725, 727-728, 102 L.Ed.2d at pp. 886, 889] (maj. opn.).) The government cannot avoid constitutional conflict simply because a racial classification is part of a statutory scheme which is so broad and/or amorphous that it might in some instances be employed in a race-neutral manner. If the racial classification is not necessary to the statutory scheme, it may not be employed. (Shaw v. Hunt, supra, 517 U.S. at p. 910 [116 S.Ct. at p. 1903, 135 L.Ed.2d at p. 222] (maj. opn.); Croson, supra, at p. 507 [109 S.Ct. at p. 729, 102 L.Ed.2d at p. 891] (maj. opn.).) If the racial classification is necessary to the statutory scheme, it must be justified by a compelling governmental interest, and its use must be narrowly tailored to serve that interest. (Wygant, supra, 476 U.S. at p. 274 [106 S.Ct. at p. 1847, 90 L.Ed.2d at p. 268] (plur. opn.).)

E

In respondents’ view, strict scrutiny applies only where legislation grants a preference based upon race, and not where the legislation is merely “race conscious.”

We do not agree that a law must confer a preference before strict scrutiny applies. The United States Supreme Court could not be more certain on this point. The ultimate goal of the equal protection clause is the complete elimination of irrelevant factors such as race from governmental decision-making. (Croson, supra, 488 U.S. at p. 495 [109 S.Ct. at pp. 722-723, 102 L.Ed.2d at p. 883] (plur. opn.).) Regardless of the burdens or benefits imposed by or granted under a particular law, the use of a racial classification presents significant dangers to individuals, racial groups, and society at large. (Croson, supra, at pp. 493-494 [109 S.Ct. at pp. 721-722, 102 L.Ed.2d at p. 882] (plur. opn.).) “Racial classifications of any sort pose the risk of lasting harm to our society.” (Shaw v. Reno, supra, 509 U.S. at p. 657 [113 S.Ct. at p. 2832, 125 L.Ed.2d at p. 535] (maj. opn.).) And without strict scrutiny, a court cannot determine whether a racial classification truly is benign or remedial. (Id. at p. 653 [113 S.Ct. at p. 2830, 125 L.Ed.2d at p. 533] (maj. opn.); Adarand, supra, 515 U.S. at p. 226 [115 S.Ct. at p. 2112, 132 L.Ed.2d at p. 181] (maj. opn.).) What is significant under the equal protection clause is that the government has drawn a line on the basis of race or ethnic status (Bakke II, supra, 438 U.S. at p. 289 [98 S.Ct. at pp. 2747-2748, 57 L.Ed.2d at p. 770] (lead opn.)), and laws that do so are immediately suspect. (Shaw v. Reno, supra, 509 U.S. at p. 642 [113 S.Ct. at p. 2824, 125 L.Ed.2d at p. 525] (maj. opn.).)

Nevertheless, we agree that a law is not subject to strict scrutiny review merely because it is “race conscious.” (See Shaw v. Reno, supra, 509 U.S. at p. 642 [113 S.Ct. at p. 2824, 125 L.Ed.2d at p. 525] (maj. opn.).) Since the guarantee of equal protection is an individual right, where the operation of the law does not differ between one individual and another based upon a suspect classification, strict scrutiny is not required even though the law might mention matters such as race or gender. Accordingly, to use respondent California Community Colleges’ example, a law prohibiting discrimination on the basis of race or gender would be race and gender conscious but would not invite strict scrutiny.

In this respect, we agree with respondents that if a statutory provision can, by fair and reasonable interpretation, be given a meaning consistent with the requirements of the Constitution rather than in conflict with it, we must so interpret the statute in order to preserve its validity. (Izazaga v. Superior Court (1991) 54 Cal.3d 356, 371 [285 Cal.Rptr. 231, 815 P.2d 304]; People v. Davenport (1985) 41 Cal.3d 247, 264 [221 Cal.Rptr. 794, 710 P.2d 861].)

However, as we shall explain, for the most part the statutory schemes at issue in this case, which employ express racial and gender classifications, cannot be interpreted to preserve their validity.

F

Several respondents assert that statutory schemes which may be denominated as outreach, recruitment, or inclusive measures do not violate principles of equal protection or Proposition 209.

With respect to a benefit or advantage, such as admission to a school of higher education, a government job, or a public contract, the cognizable interest of a competitor is in being able to compete on an equal footing without regard to the race or gender of other competitors. (Adarand, supra, 515 U.S. at p. 211 [115 S.Ct. at pp. 2104-2105,132 L.Ed.2d at p. 171] (maj. opn.).) A competitor does not have a constitutionally cognizable interest in limiting the pool of applicants with whom he or she must compete. (See Alabama Power Co. v. Ickes (1938) 302 U.S. 464, 479-480 [58 S.Ct. 300, 303-304, 82 L.Ed. 374, 378].) Therefore, outreach or recruitment efforts which are designed to broaden the pool of potential applicants without reliance on an impermissible race or gender classification are not constitutionally forbidden. (See Hi-Voltage, supra, 24 Cal.4th at p. 565.)

But if the statutory scheme relies upon race or gender classifications, it must, for equal protection analysis, be subjected to strict judicial scrutiny. And if it discriminates against or grants preference to individuals or groups based upon race or gender, it is prohibited by Proposition 209.

G

Respondents contend that monitoring programs which collect and report data concerning the participation of women and minorities in governmental programs do not violate equal protection principles. We agree.

Throughout the various opinions filed in the United States Supreme Court’s affirmative action cases, no justice has suggested that discrimination is a thing of the past which need not concern governmental entities. Governmental entities remain under a duty to eliminate the vestiges of segregation and discrimination. (Wygant, supra, 476 U.S. at p. 277 [106 S.Ct. at pp. 1848-1849, 90 L.Ed.2d at p. 270] (plur. opn.).) All of the justices agree that governmental entities may use race- and gender-neutral methods of fostering equal opportunity and that, in some instances, even race- and gender-specific remedies may be employed. Accurate and up-to-date information is the sine qua non of intelligent, appropriate legislative and administrative action. Assuming that strict scrutiny is required, a monitoring program designed to collect and report accurate and up-to-date information is justified by the compelling governmental need for such information. So long as such a program does not discriminate against or grant a preference to an individual or group, Proposition 209 is not implicated.

Ill

With all of the aforesaid principles in mind, we proceed to consider the specific statutory schemes challenged in this proceeding.

State Lottery

The statutory provision applicable to the state lottery that plaintiff challenges is contained in Government Code section 8880.56, which is set forth in full in appendix A, post. (Further section references are to the Government Code unless otherwise specified.) At issue is subdivision (b)(5), which was added by the Legislature in 1986. (Stats. 1986, ch. 55, § 17, pp. 158-160, eff. Apr. 16, 1986.) As we will explain, that subdivision violates principles of equal protection and Proposition 209.

With respect to the advertising or awarding of any contract for the procurement of goods and services exceeding $500,000, section 8880.56, subdivision (b)(5) imposes upon the California State Lottery Commission (the commission) and its director an “affirmative duty” of maximizing the level of participation of “socially and economically disadvantaged small business concerns” in the commission’s procurement programs. The commission is required to “adopt proposal evaluation procedures, criteria, and contract terms which . . . will achieve the most feasible and practicable level of participation by socially and economically disadvantaged small business concerns . . . .” And bidders and contractors, are required “to include specific plans or arrangements to utilize subcontracts with socially and economically disadvantaged small business concerns.”

Economic disadvantage is a criterion that may be determined through application of race-neutral and gender-neutral financial factors. Social disadvantage is a more amorphous concept that certainly invites reliance on racial and gender classifications. But we do not have to guess as to legislative intent because the fourth paragraph of section 8880.56, subdivision (b)(5) expressly incorporates racial, ethnic, and gender classifications into the statutory meaning of “socially and economically disadvantaged.” Individuals from a list of racial and ethnic backgrounds and women are conclusively presumed to be socially and economically disadvantaged regardless of their actual affluence. Persons from the excluded group, apparently only White males, may be included if found by the commission to be disadvantaged, but the statute provides no definitional criteria, no application procedures, and no procedures for review of the commission’s determination.

Even if such procedures were included in the statute, the fact that some individuals must prove disadvantage while others are conclusively presumed to be disadvantaged based solely on race, ethnicity, and gender, establishes impermissible race, ethnicity, and gender classifications. (See Stanley v. Illinois (1972) 405 U.S. 645, 657-658 [92 S.Ct. 1208,1215-1216, 31 L.Ed.2d 551, 562].)

The challenged provision does more than use race, ethnicity, and gender classifications; it establishes preferences for persons from the favored groups. The commission and director are assigned the affirmative duty of maximizing participation by such persons. Selection procedures and criteria are required to accomplish that objective. And bidders and contractors are required to include specific plans or arrangements to utilize subcontracts with members of the favored groups. These provisions do not merely attempt to equalize the opportunity to participate, they establish a preference for doing business with members of the favored groups.

Section 8880.56, subdivision (b)(5) cannot even arguably withstand strict scrutiny. The absence of any identification of past discrimination by the California State Lottery, the random inclusion of groups without individualized consideration whether particular groups suffered from discrimination, the absence of any attempt to measure the recovery by the extent of the injury, the absence of any attempt to disburse the benefits of the scheme in an evenhanded manner to those who actually suffered detriment, and the absence of any geographic or temporal limits to the scheme, all serve to condemn it.

The commission and director do not attempt to justify the statute as written, but argue that they have implemented it in a constitutional manner. Specifically, they assert they have implemented it as a small business outreach statute, using the definition of small business from the Small Business Procurement and Contract Act (§ 14835 et seq.), which does not employ racial and gender classifications. They contend that, as implemented, bidders and contractors are required to make good faith efforts to reach out to minority-owned and women-owned small business concerns, but that no preference or advantage in contracting or subcontracting based on race or gender is applied.

The difficulty with this position is that the commission and director lack the authority to cure a facially unconstitutional statute by refusing to enforce it as written. (Cal. Const., art. III, § 3.5; Reese v. Kizer (1988) 46 Cal.3d 996, 1002 [251 Cal.Rptr. 299, 760 P.2d 495].) We do not deal here with an ambiguous statutory provision that can be interpreted in a constitutional manner; rather, it is a statute that cannot be implemented both constitutionally and in accordance with its express terms. However well intentioned, to the extent that the commission and the director refuse to employ racial and gender preferences in implementing section 8880.56, subdivision (b)(5), they do so in disregard of express statutory requirements. While administrative interpretation may save an ambiguous statute, it cannot cure a facially invalid statute.

Professional Bond Services

The statutory provisions applicable to professional bond services that plaintiff challenges are contained in sections 16850 through 16857, which are set forth in full in appendix B, post. For reasons which follow, we conclude that, with one exception, the challenged provisions violate principles of equal protection and Proposition 209.

Government bonds may be issued for a variety of purposes and on behalf of a variety of state departments and agencies. The bonds must be issued in accordance with the dictates of the particular authorizing act, enacted by the electorate or by a legislative body with authority to provide for the issuance of bonds. (Golden Gate Bridge etc. Dist. v. Filmer (1933) 217 Cal. 754, 757-758 [21 P.2d 112, 91 A.L.R. 1].) Matters that are not governed specifically by the authorizing act or otherwise required by law are left to the broad discretion of the issuing department, agency, or officer. (Ibid.; see also Kennedy v. McInturff (1933) 217 Cal. 509, 514-515 [20 P.2d 315].)

With respect to issuance of state bonds, the State Treasurer is the sole agent for offering and selling bonds. (§ 5702.) In selling bonds on behalf of any state agency or department, the State Treasurer is required to schedule the sale of the bonds so as to coordinate the sale with the program of the department or agency necessitating the sale of the bonds. (Ibid.)

In the issuance of government bonds, the state may contract for the services of financial advisers, bond counsel, underwriters, underwriter’s counsel, financial printers, feasibility consultants, and other professionals. (§ 16851, subd. (j).) Underwriters essentially serve as transfer agents. The State Treasurer may, in some instances, select an underwriting team without competitive bidding (§ 5703); in those situations, the State Treasurer negotiates a contract with the underwriters, and the underwriters negotiate the sale of bonds to the public. In other instances, bond underwriters are chosen through competitive bidding; in those situations, the bonds are sold to the underwriter who submits the most favorable bid, and the underwriter then resells the bonds to the investing public.

Sections 16850 through 16857 establish minority and women business “participation goals” for professional bond service contracts. The statutory scheme establishes and utilizes racial and gender classifications. For purposes of the scheme, “minority” is defined to mean “an ethnic person of color . . . .” (§ 16851, subd. (h).) Minority business enterprises and women business enterprises are defined by reference to majority ownership and control in minorities and/or women. (§ 16851, subds. (i) & (k).) To be a minority business enterprise or a women business enterprise, a business must be at least 51 percent owned and controlled by one or more minorities or women, respectively. (§ 16851, subds. (i) & (k).) A business owned and controlled 50 percent by minorities and 50 percent by women may be counted as either but not both. (§ 16851, subd. (/).)

With respect to contracts awarded without competitive bidding, section 16850, subdivision (a) establishes statewide participation goals of 15 percent for MBE’s and 5 percent for WBE’s. The trial court found that this portion of the statutory scheme is invalid, and it is not at issue in this appeal.

With respect to contracts awarded through competitive bidding, section 16850, subdivision (a) requires each awarding department to establish minority business and women business participation goals. A “goal” is “a numerically expressed objective that awarding departments and providers of professional bond services are required to make efforts to achieve.” (§ 16851, subd. (f).) The goals “apply to the overall dollar amount expended by the award