For public works contractors, the freeze on Proposition 209 generally means that state and local government programs to encourage the participation of minority and women owned business enterprises in public contracting remain in place. The question is, for how long? The District Court's order freezing Proposition 209 has been appealed, and on February 10, 1997, a panel of three Republican appointed judges assumed control of the appeal. In a recent hearing, those judges asked pointed questions of an American Civil Liberties Union attorney who was defending the freeze order. Further written arguments about the validity of the freeze order were due in the Appeals Court from both opponents and supporters of Proposition 209 on February 28, 1997. For now, the Court of Appeals has not yet lifted the stay, meaning that existing M/WBE programs will continue to be enforced.
Also unclear is how possible future implementation of Proposition 209 will ultimately impact public contracting in California. CalTrans projects that involve the use of federal funds are subject to federal regulations concerning outreach to M/WBEs that will likely not be affected by Proposition 209, even if state funded CalTrans projects would be. Further, even before the freeze order was issued, some public agencies, like the City of San Jose, announced that their M/WBE programs would remain substantially intact under Proposition 209. Such programs would not be illegal race or gender based preferences, the agencies argue, but instead would provide a means of assuring nondiscrimination in public contracting. Nor surprisingly, Proposition 209 supporters have cried foul.
Thus, the only thing that appears certain is the likelihood of further court battles over Proposition 209.