view of the City's budgetary constraints and the opposition voiced by segments of the local business community, this Board finds that creation of a special revolving fund, or relaxation or waiver of bonding requirements is not feasible at this time." Id.; see also, Hearings, April 24, 1989, at 22-24, and May 8, 1989 at 37; Cal. Const. Art. XVI, § 6 (prohibiting gifts or loans of public monies or pledging of credit prohibited); cf., Contractors Ass'n of Eastern Pa. Inc., 735 F. Supp. at 1298 (MBE plan not narrowly tailored given city's failure to investigate race neutral alternatives and reject them as "not viable or practical").
Plaintiff also contends that the bid preference is not "narrowly tailored" because it is not limited to actual past victims of discrimination, emphasizing the court's observation in Croson that the Richmond plan failed to provide for any "inquiry into whether or not the particular MBE seeking a racial preference has suffered from the effects of past discrimination by the city or prime contractors." 488 U.S. at 508, 109 S. Ct. at 729. This observation was made in the context of the court's strong reaction to the Richmond plan's rigid 30 percent quota -- a quota which granted an "absolute preference" to MBE's anywhere in the country based solely on race and without any demonstration that remedial action was necessary. Id. We decline to read this language as precluding local governments from ever utilizing any type of race conscious remedy to serve the compelling state interest of remedying the effects of identified discrimination -- particularly where, in contrast to the Richmond plan, the remedy is limited to a discrete group, which the city admits to discriminating against, and the remedy is narrowly tailored to rectify the identified discrimination. Concluding otherwise would, in fact, inexplicably nullify the court's subsequent comment that "in the extreme case, some form of narrowly tailored racial preference might be necessary to break down patterns of deliberate exclusion." Id. at 509, 109 S. Ct. at 729.
As that comment indicates, the Court left open the possibility of voluntary city sponsored race conscious remedies under some circumstances; see also, Wygant, 476 U.S. at 287, 106 S. Ct. at 1854 ("[The Wygant court has] agreed that a plan need not be limited to the remedying of specific instances of identified discrimination for it to be deemed sufficiently 'narrowly tailored'") (O'Connor, J. concurring). Yet, an iron clad requirement limiting any remedy to individuals personally proven to have suffered prior discrimination would render any race conscious remedy superfluous. For such a remedy could be applied solely on the basis of the beneficiary's status as a "past victim" and without reference to any racial classification at all. In other words, "[a] remedy that goes to the actual victim is not race-conscious at all, it is victim-conscious." Fried, Affirmative Action After City of Richmond v. J.A. Croson Co.: A Response to the Scholars' Statement, 99 Yale L.J. 155, 161 (1989).
In sum, the modest five percent bidding preference enacted by San Francisco is of a wholly different nature than the outcome-determinative, "grossly overinclusive" legislation enacted by the city of Richmond. Croson, 488 U.S. at 506, 109 S. Ct. at 728. For the reasons discussed above, the 1989 Ordinance's scaled-down, measured approach appears to preclude the "possibility that the motive for the classification was illegitimate racial prejudice or stereotype," Croson, 488 U.S. at 493, 109 S. Ct. at 721, rather than remedial. Thus, we conclude that plaintiff has not shown that it is likely to succeed on its contention that San Francisco's plan is insufficiently tailored to satisfy the strictures of the equal protection clause of the fourteenth amendment.
Plaintiff has not persuaded this court that it is likely to succeed on its claim that the 1989 Ordinance fails to serve the compelling interest of remedying the effects of past discrimination by the city of San Francisco against San Francisco based MBE's, or its claim that challenged portions of the Ordinance are not narrowly tailored to that goal. This assessment of plaintiff's constitutional claim also leads us to conclude that plaintiff has not demonstrated a sufficient threat of irreparable injury to warrant a mandatory injunction at this juncture. Nor has plaintiff demonstrated that the balance of hardships tips sharply in its favor. Accordingly, plaintiff's motion for an order preliminarily enjoining the challenged provisions of the 1989 Ordinance is denied.
IT IS SO ORDERED.