Dawn

Plaintiff Dawn filed a petition for writ of mandate pursuant to Code of Civil Procedure section 1094.5; it sought review of defendant's decision affirming a promotional appointment of a woman, Patricia Khan, to a civil service position which plaintiff alleged he would have received had the law been properly applied.

(1) The fundamental question on appeal is whether the judgment of the trial court denying the petition for mandate is supported by substantial evidence, viewing the record in the light most favorable to defendant. ( Brush v. City of Los Angeles (1975) 45 Cal. App.3d 120, 123 [ 119 Cal. Rptr. 366 ]; Harmon v. Board of Retirement (1976) 62 Cal. App.3d 689, 691-692 [ 133 Cal. Rptr. 154 ].)

The defendant State Personnel Board (board) is created and established by article VII, section 2, of the California Constitution. Plaintiff was a civil service parole agent I in the Department of the Youth Authority. In September 1971, a promotional examination was given for the position of parole agent II. A number of parole agents I, including plaintiff and Khan, took the examination. Plaintiff placed in the third "rank" of eligibles and Khan in the sixth. [1] In…

Plaintiff Dawn filed a petition for writ of mandate pursuant to Code of Civil Procedure section 1094.5; it sought review of defendant’s decision affirming a promotional appointment of a woman, Patricia *590 Khan, to a civil service position which plaintiff alleged he would have received had. the law been properly applied.

The fundamental question on appeal is whether the judgment of the trial court denying the petition for mandate is supported by substantial evidence, viewing the record in the light most favorable to defendant. (Brush v. City of Los Angeles (1975) 45 Cal.App.3d 120, 123 [ 119 Cal.Rptr. 366 ]; Harmon v. Board of Retirement (1976) 62 Cal.App.3d 689, 691-692 [ 133 Cal.Rptr. 154 ].)

The defendant State Personnel Board (board) is created and established by article VII, section 2, of the California Constitution. Plaintiff was a civil service parole agent I in the Department of the Youth Authority. In September 1971, a promotional examination was given for the position of parole agent II. A number of parole agents I, including plaintiff and Khan, took the examination. Plaintiff placed in the third “rank” of eligibles and Khan in the sixth. 1 In 1974, when an…

Concurring. — The lead opinion is correct and its reasoning sound. I fully concur. I render this separate opinion only to emphasize my reasons for the belief that while the constitutional precepts embraced by the dissent are and ever should be sacred, they do not forbid the action taken here. They do however forbid anything more, for I see the preference accorded Khan as the outer limit of governmental favoritism permitted by equal protection guarantees. Anything more than a preference applied where, and only where, there is full and true objective equality of qualification is abhorrent to the Constitution and to the democratic ethic therein proclaimed.

The term “affirmative action” has entered our common parlance in the wake of the struggle of the past 30 years to eliminate racial (and other) discrimination in employment, education, housing, travel, etc. Although the frequent topic of discussion, the term is rarely defined in advance so as to fbrqi a common base for intelligent discourse. This lack of definition (sometimes perhaps deliberate, as pointed out in the lead opinion) is responsible for much of the confusion, misunderstanding, and disagreement regarding the subject. I…

I dissent.

Plaintiff John Dawn and Patricia Khan were employed by the State of California in the classified service; they worked in the San Jose office of the California Youth Authority (department) as parole agents grade I. *597 Plaintiff and Khan were on a civil service list established by competitive examination for promotion to the next highest class, parole agent grade II. A single vacancy occurred in the San Jose office for parole agent II. At that time plaintiff and Khan were in the three highest ranks on the list certified to the appointing authority and were considered by their supervisor as qualified for and deserving of advancement. Khan received the promotion; contrary to the implication in the majority opinion, plaintiff was not interviewed for the position and in fact was accorded no more than formal consideration for advancement. The uncontradicted evidence conclusively establishes that the decisive factor in the appointment was gender. Khan was successful because she is female; it is equally clear that plaintiff was not seriously considered for promotion because he is male.

The majority find nothing in these facts to commend the intercession of this court,…