California Constitution Section 31 represents one of the most complex and controversial provisions in state law, establishing a framework that prohibits both discrimination and preferential treatment in public employment, education, and contracting. This provision, when read alongside Government Code Section 8315's definition of racial discrimination, creates a legal environment where traditional discrimination and reverse discrimination claims can both arise.
Public agencies, educational institutions, and contractors working with the state must carefully navigate these provisions to remain compliant. Missteps can lead to costly litigation, reputational harm, and operational challenges. Understanding Section 31's scope and enforcement is critical for developing lawful, effective policies and defending against allegations.
Understanding California Constitution Section 31
Section 31 prohibits the State of California from discriminating against or granting preferential treatment to any individual or group based on race, sex, color, ethnicity, or national origin. These prohibitions apply specifically to:
- Public employment decisions
- Public education policies and practices
- Public contracting and procurement
The provision is unique because it simultaneously addresses traditional discrimination and restrictions on affirmative action, which can create conflicts between diversity initiatives and constitutional requirements.
The Dual Nature of Section 31
Section 31's complexity lies in its dual prohibition:
- Traditional Discrimination: Prohibiting actions that disadvantage individuals based on protected characteristics.
- Reverse Discrimination: Prohibiting preferential treatment that benefits certain groups, even when designed to remedy historical inequities.
This dual approach often forces organizations to balance diversity goals with strict legal constraints, creating a high-risk environment for public sector entities.
Government Code Section 8315 and Racial Discrimination
Government Code Section 8315 adopts the definition of racial discrimination from the International Convention on the Elimination of All Forms of Racial Discrimination. This definition includes any distinction, exclusion, restriction, or preference based on race, color, descent, or national or ethnic origin that impairs equal enjoyment of rights and freedoms. It covers both intentional and unintentional conduct, significantly broadening potential liability.
Special Measures Exception
Section 8315 allows “special measures” intended to advance specific racial or ethnic groups, provided they do not create permanent separate rights and are discontinued once their objectives are met. This mirrors some protections recognized in the California Racial Justice Act of 2020, which similarly aims to eliminate bias while balancing legal constraints.
Penalties for Violations of Section 31
While Section 31 is primarily an injunctive and declaratory remedy provision, violations can lead to:
- Court orders halting noncompliant hiring, admissions, or contracting practices
- Loss of public funding or termination of state contracts
- Legal fees, costs, and potential damages under related state or federal laws
- Reputational harm affecting future public or private opportunities
Defense Strategies in Section 31 Cases
Challenging Standing and Scope
One defense is to challenge whether the plaintiff has standing or whether the conduct even falls within Section 31's scope. Section 31 applies only to state action, not purely private conduct. Additionally, plaintiffs must show personal harm from the alleged violation.
Legitimate Business Justifications
Decisions based on objective, job-related, or merit-based criteria can withstand scrutiny. Consistent application of policies across all individuals, regardless of protected status, is essential.
Pretext Analysis
Defense often involves showing that stated reasons for employment, admissions, or contracting decisions are genuine, supported by contemporaneous documentation and comparative evidence.
Employment Context Challenges
Public employers must ensure hiring and promotions are merit-based, with structured processes and strong documentation. Diversity initiatives should focus on inclusive outreach rather than preferential selection, aligning with lawful inclusion goals while avoiding constitutional violations.
Educational Institution Considerations
Colleges and universities must structure admissions, financial aid, and program eligibility without direct racial preferences. Socioeconomic status, first-generation status, and other nonracial factors can be used to promote diversity lawfully.
Public Contracting Compliance
Agencies should maintain competitive, open bidding based on qualifications, price, and experience. Small business programs should focus on economic disadvantage and geographic criteria rather than race or ethnicity.
Intersections with Federal Law
Section 31 can conflict with federal mandates under Title VII, Title IX, or federal contracting requirements. Organizations must develop compliance strategies that satisfy both sets of obligations. For example, entities facing federal public corruption charges may also have to navigate state-level restrictions when implementing compliance programs.
Risk Management and Compliance Programs
Regular policy reviews, training programs, and legal audits are critical to prevent violations. Monitoring outcomes for disparate impacts can help identify and correct problems early. Institutions supporting immigrant or victim populations, such as those eligible for U visa protections for victims of crime in California, must ensure their outreach and selection criteria comply with Section 31.
Discrimination and Preferential Treatment Prohibitions Defense Lawyers in California
California Constitution Section 31 litigation requires attorneys with deep knowledge of constitutional law, civil rights statutes, and government operations. Bulldog Law has extensive experience defending public agencies, educational institutions, and contractors in discrimination and preferential treatment cases. Our team understands the balance between diversity goals and legal compliance, providing strategic guidance to safeguard your organization's interests. Contact us today to discuss your case and protect your legal position.