Taking the Initiative

In the wake of Washington State’s passage of Initiative 200, pro-affirmative action scholars call for a new combat strategy

Washington state’s governor and former governor, the state’s
Democratic Party, and many other local politicians from both major
parties opposed Initiative 200. Civil rights organizations opposed it.
Businesses like Microsoft and Starbucks opposed it. The unions opposed
it. The largest newspaper in the state opposed it. Higher education
officials and student organizations opposed it. And on top of that, the
coalition formed to defeat it raised more than $1 million — four to
five times what proponents raised, according to The Seattle Times.

But when it came to the electorate, well let’s just say, they
listened to the advice and ignored it. The initiative was approved by
59 percent of the state’s voters earlier this month.

Though 59 percent may not sound like a landslide to some observers,
consider that the initiative won in every county in the state except
one — King County, which includes the city of Tacoma and most of
Seattle. As a result, Washington now becomes the second state, behind
California, to say no to affirmative action.

According to John Carlson, the conservative political commentator
who headed the campaign for the measure, voters said, “`Hey look, this
makes sense. We should have done this years ago. It’s time for us to
look beyond what makes us different.'”

But Arthur Fletcher, former assistant labor secretary under
President Richard Nixon, said there was “a lot of confusion out there
about what the initiative would do. I expect there will be a battery of
lawyers to test exactly how this is going to be carried out.”

“[The initiative process] allows you to simplify an issue and then
impose it on elected officials,” said Gary Orfield, of Harvard
University’s Civil Rights Project. “Most elected officials think
affirmative action is not perfect, but see it as something that is
needed. By bypassing the legislature, [affirmative action foes] force
the issue and then it requires [a lawsuit in] the courts to overturn
it.”

Initiative 200 becomes law December 3, thirty days after its passage.

At the National Level

The Washington State Civil Rights Initiative, as Initiative 200 is
formally known, now poses several serious and nagging questions about
the future of affirmative action.

“It basically means a full-scale national battle,” said Orfield. “[The anti-affirmative action forces] had a big victory.”

The passage of the measure is particularly disturbing to Orfield
because he thought that the opponents of Initiative 200 put up a good
battle, raising a large amount of money to defeat the initiative.

“I think we are going to be dealing with this all over the place”
he said, referring to plans to put similar initiatives on the ballots
in even more states in upcoming elections.

Pointing to a Seattle Times poll, he noted that approximately
one-third of Whites in the state of Washington said they were
negatively impacted by affirmative action. This despite the fact that
minorities make up less than 12 percent of the population of the state.

“That just doesn’t make sense mathematically,” Orfield said. “There
is a huge educational job to do. We need to get churches and community
groups and everybody else speaking about this.”

Noting books like The Shape of the River: Long Term Consequences of
Considering Race in College and University Admissions by Dr. William G.
Bowen and Derek Bok, Orfield adds that, “The intellectual work is being
done, but it is not being communicated efficiently.”

Calling the vote in Washington state “another step backwards,” Dr.
William M. Chace, president of Emory University, agreed with Orfield’s
assessment of the need for proper education on the subject.

“[The anti-affirmative action movement] is born out of considerable
ignorance of the real effects — the positive effects — of affirmative
action on not only minorities, but on Whites as well,” Chace said.

“We’ve had affirmative action [for minorities] for just about
thirty years and 300 years of affirmative action for other people,” he
continued. “To say that [affirmative action] is a failed scheme that
doesn’t work is simply unfair.”

However, not everyone who supports affirmative action sees gloom and doom in the recent elections.

“We can take hope from the resets of the national election,” said
Margaret Montoya, a professor at the University of New Mexico’s School
of Law, discussing the strong Democratic showing from across the
country. “We can take hope that people are mining their backs on the
agenda put forth by the radical right. [This election] vindicates those
of us who support affirmative action.”

According to Montoya — and many other affirmative action
proponents — the key to the success of these initiatives has been the
language. Her solution is to redefine the debate.

“Those of us who are proponents have to clarify the terms of the
debate and try to make it clear that it is not a question of
preferences or of righting wrongs that happened in the mid-1800s. White
supremacy is an ideology that continues through the 1990s. The force
can be seen not only with this issue, but with regards to immigrants,
bilingual education, and the continued attacks against poor people.”

Montoya added that the increased participation of Blacks and
Hispanics during the recent election is what provided Democrats with
the margin of victory in many political races across the country.
According to The Washington Post, Black participation increased from 9
percent of the electorate in 1994 — the last mid-term election — to
11 percent this year. Likewise, Hispanic participation increased from 3
percent to 5 percent. The participation of White Christian
Conservatives, on the other hand, decreased from 15 percent to 13
percent.

The California Perspective

Dr. Ronald Takaki, of the University of California-Berkeley, agreed
with Orfield’s assessment that fighting the anti-affirmative action
initiatives has become a national battle.

“This has to be a national movement. We need to work together on this” he said.

But Takaki also says that a lot still can be accomplished at the
state level through the ballot box. And that is exactly what he sees
happening in California, where these ballot initiatives to end
affirmative action began. California voters passed Proposition 209,
which ended the use of racial considerations by the state, in 1996.

“[Democrats] control Sacramento now,” Takaki said. Democrat Gray
Davis was elected to replace Republican Pete Wilson, an affirmative
action foe, as governor.

“His victory was a tremendous one because he won by fourteen points,” Takaki said.

The victory is significant to the affirmative action debate because
Davis will be making five new appointments to the University of
California’s board of regents. Wilson had tried to name three new
conservative-leaning regents before he left office.

“We will be able to restructure the board of regents and take it
out of the hands of Ward Connerly,” said Takaki, referring to the man
who spearheaded California’s Proposition 209 campaign and sent
financial support to the supporters of Initiative 200 in Washington
state. “He is going to lose his power base here in California.”

Since Davis will have a major hand in the reshaping of California’s
congressional districts after the 2000 census, Takaki says the state
should have more Democratic representatives in the U.S. Congress in the
next decade.

“We are focused on winning in California” he said. “I think
California has the opportunity to lead the nation” in the fight to
retain affirmative action.

And Montoya said that opportunity is there because, “Gray Davis knows who put him in office.”

Takaki, author of A Different Mirror: A History of Multicultural
America, also says that California is politically moving to the left
because of the changing demographics of the state. Currently, according
to Takaki, the population of the state is 30 percent Hispanic, 12
percent Asian, and 8 percent Black.

In an attempt to reverse Proposition 209, formally known as the
California Civil Rights Initiative, Takaki has drafted his own voter
referendum to the 2000 election.

“The people of California are entitled to have another opportunity
to vote on the issue of affirmative action,” he wrote in an article
that appeared in The Nation.

Questions in Washington

Back in the state of Washington, race has played a surprisingly
small role in politics during the nineties. Last year, Washington
elected the country’s first Chinese American governor, Gary Locke. And
both Seattle’s former mayor, Norm Rice, and current King County
executive, Ron Simms, are Black.

Maybe that is why former Republican Gov. Dan Evans, a leading
opponent of the measure, blamed outside influence for the initiative’s
passage. He was specifically referring to Connerly, who masterminded
the passage of California’s Civil Rights Initiative supported the
Washington Initiative.

Locke, a Democrat, said he believed that I-200 won because the
ballot title misled people into thinking it was a pro-affirmative
action measure. However, a Seattle Times poll found most voters
understood the initiative.

Nonetheless, the wording of the initiative may have played a
crucial role. Polls and experience in similar contests show voters tend
to oppose measures they’re told will diminish or do away with
affirmative action. But when a measure talks about banning
“preferential treatment,” the public tends to support it.

Because the initiative lacked definitive language, how its passage
will affect state institutions is still unclear. According to Liz
Mendizabal, spokeswoman for the state’s attorney general’s office, no
determination has been made as to exactly how the law will be
implemented. As a result, many state agencies and higher education
institutions are unsure about what to do.

“We expect a lot of questions,” Mendizabal said.

Even before the initiative passed, the office of Christine
Gregoire, the attorney general for the state of Washington, began
fielding questions from state agencies and officials about the impact
of the new law. In response, Gregoire’s office put together an issue
paper to respond to the most-asked questions her office received prior
to the election.

Because of the variety of agencies and institutions involved,
Mendizabal said that it is difficult to come up with a definitive
policy that could be applicable to all.

“We will be working with state agencies on a case-by-case basis,
providing legal advice and guidance on the procedures they will need to
change in order to comply with the law. We will continue to serve the
state agencies and the colleges and universities as we always do.

“It is our constitutional obligation to defend the laws of the state,” she added.

The day after the election, officials at the University of
Washington said they wouldn’t wait for lawsuits to start complying.
Ernest Morris, the school’s vice president of student affairs, said the
state’s largest public university immediately “will suspend the use of
race and gender” as criteria for admission into the institution.

“It’s going to be a challenge for us to sustain diversity” at university admissions, Morris said.

Despite the outcome of the Washington election, Emory University’s
Chace is not worried about the national demise of affirmative action
because he believes that there are too many college presidents who see
its benefits.

“The private schools will lead the way because the public schools
are under so much pressure,” he said. “We will carry on affirmative
action. Make no doubt about that.”

And the University of New Mexico’s Montoya added, “There is no
white flag in the future from those of us who support affirmative
action. We will resist the deception of the right and the way that they
frame the issues. They know if they just make it a referendum on
affirmative action, they are going to lose. They have won a little
battle, but it only fortifies us because we are in the right on this
issues.”

RELATED ARTICLE: Issue Paper on Initiative 200

Excerpts from a paper distributed by Washington State’s Attorney General’s Office

Introduction

The purpose of this memorandum is to identify the primary legal
issues raised by the Initiative (called “the Initiative” or “Initiative
200”) that our clients and the attorneys who represent them need to
prepare to address. This memorandum discusses, but does not answer, the
questions that are raised. Only the courts can finally decide the
meaning of the Initiative, and the courts may well interpret its
language in light of the public debate about the measure during the
next two months. In that sense, the legislative history of the measure
is not yet written. However, We have prepared this memorandum with a
preliminary discussion because state agencies have asked for assistance
in making adequate preparation to administer various laws and programs
in case the measure is approved. [1] We will continue to work together
to coordinate state government’s approach to the major legal issues
that would arise if the measure were adopted.

This memorandum discusses those legal issues which would likely
affect many different agencies. Individual agencies and institutions
will no doubt have additional issues, specific to their activities, to
examine if the Initiative is approved. We will caution the state
agencies and officers that as requested, our advice and analysis is
intended to assist the state agencies and officers to carry out their
duties, and not to influence public debate to take a position on the
Initiative.

Issue No. 1: Interpreting the Language of the Initiative, Particularly “Discriminate” and “Preferential Treatment.”

A. The Prohibition On “Discrimination” Overlaps Existing Law.

The heart of Initiative 200 depends on the interpretation of two
terms found in section 1 (1): “discriminate “and “preferential
treatment.” The first of these terms, “discriminate,” has a history of
statutory and case law interpretation. RCW 49.60 is designated as the
“law against discrimination” (RCW 49.60.010), and RCW 49.60.030
preserves “[t]he right to be free from discrimination because of race,
creed, color, national origin, sex, or the presence of any sensory;
mental, or physical disability or the use of a trained guide dog or
service animal by a disabled person.”

RCW 49.60.010 explicitly covers “employment,” and the chapter may
by implication cover some examples of public education and contracting
as well. As to “discrimination” then, the Initiative at least partly
overlaps current statutory law. [2]

The Prohibition on “Preferential Treatment” Is Not Defined in the Initiative and Does Not Have a Well-Established Meaning.

The other term, “preferential treatment,” is not defined in the
statute and does not have a historical legal use or “well-accepted,
ordinary meaning” which would be used in judicial construction. See
Washington State Coalition for the Homeless v. Department of Social and
Health Services, 133 Wn.2d 894, 906, 949 P.2d 1291 (1997). The term is
essentially new to Washington jurisprudence and the courts would have
to construe the term and decide what practices constitute “preferential
treatment.”

Little guidance is provided by the use of this term in other
contexts. “Preferential treatment” and a related term, “preference,”
appear in a few Washington laws and opinions, but in different contexts
and with little discussion of the meaning of the terms. [3] Similarly,
these terms have been used in United States Supreme Court opinions, but
with little discussion of their meaning. [4] Case law developing under
California’s Proposition 209 [5] may interpret language similar to
Initiative 200, but Proposition 209 is very new, and the California
courts are not very far along in interpreting its terms. Furthermore,
as noted below, there are important differences between the California
laws and the proposed Washington Initiative, which may limit the
relevance of California case law.

[6] Most significantly, Proposition 209 amends the California
Constitution and, therefore, overrides any conflicting statutes.
Initiative 200 would become a Washington statute on an “equal footing”
with existing statutory law. As discussed below, the courts employ
various rules of statutory construction to determine how the enactment
of a new law affects the operation of older provisions.

Since neither the Initiative nor the courts have defined
“preferential treatment”, it is difficult to evaluate how it will be
read and what effects Initiative 200 will have on existing state laws
and programs. However, the following discussion should provide a
starting point for that evaluation by identifying the principles used
in statutory construction, existing statutory provisions potentially
affected, and possible approaches to application of the Initiative in
the areas of public employment, education, and contracting. [7]

The complete document is available on the Web site of the attorney
general of the state of Washington, located at .

RELATED ARTICLE: The Complete Text of the State of Washington’s Initiative 200

An act relating to prohibiting government entities from
discriminating or granting preferential treatment based on race, sex,
color, ethnicity,, or national origin; and adding new sections to
chapter 49.60 RCW.

BE IT ENACTED BY THE PEOPLE OF THE STATE OF WASHINGTON:

Sec. 1. (1) 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.

(2) This section applies only to action taken after the effective date of this section.

(3) This section does not affect any law or governmental action
that does not discriminate against, or grant preferential treatment to,
any individual or group on the basis of race, sex, color, ethnicity, or
national origin.

(4) This section does not affect any otherwise lawful classification that:

(a) Is based on sex and is necessary for sexual privacy or medical or psychological treatment; or

(b) Is necessary for undercover law enforcement or for film, video, audio, or theatrical casting; or

(c) Provides for separate athletic teams for each sex.

(5) This section does not invalidate any court order or consent
decree that is in force as of the effective date of this section.

(6) This section does not prohibit action that must be taken to
establish or maintain eligibility for any federal program, if
ineligibility would result in a loss of federal funds to the state.

(7) For the purposes of this section, “state” includes, but is not
necessarily limited to, the state itself, any city, county, public
college or university, community college, school district, special
district, or other political subdivision or governmental
instrumentality of or within the state.

(8) The remedies available for violations of this section shall be
the same, regardless of the injured party’s race, sex, color,
ethnicity, or national origin, as are otherwise available for
violations of Washington anti-discrimination law.

(9) This section shall be self-executing. If any part or parts of
this section are found to be in conflict with federal law, the United
States Constitution, or the Washington state Constitution, the section
shall be implemented to the maximum extent that federal law, the United
States Constitution, and the Washington state Constitution permit. Any
provision held invalid shall be severable from the remaining portions
of this section.

Sec. 2. This act shall be known and cited as the Washington State Civil Rights Act.

The Associated Press contributed to this report.

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