A Duplicitous Attempt to Rescue Affirmative Action

Despite all the attention that has been devoted to Students for Fair Admissions v. Harvard in which a U.S. District judge in Boston recently held that Harvard’s discrimination against Asian applicants was not illegal, the next chapter in the generations-old battle over affirmative action will not be written by the First Circuit in Boston or even by the Supreme Court. It will be written by the voters of Washington State on November 5.

On November 3, 1998, 58.22% of Washington voters approved I-200, modeled on California’s Proposition 209, which enacted a law that prohibited public institutions from “discriminating against or granting preferential treatment to” individuals based on race, sex, color, ethnicity or national origin in the areas of public education, public employment, and public contracting.

This spring, “A predominantly African-American-led coalition that has the support of current and former governors” of both parties submitted a sufficient number of signatures to qualify I-1000, which would effectively repeal the law created by I-200. The legislature could have approved that measure for the Nov. 5 ballot, but, perhaps fearing a repeat of the 1998 vote, on a party-line vote in the last hours of the last day of the legislative session the legislature approved it directly, thus attempting to overturn by simple legislation the results of a popular referendum. The Seattle Times reports, “No Republicans favored the measure,” and that “one Democrat in the House and one in the Senate opposed it.”

I-1000 would have automatically become law if not challenged by a “veto referendum.” Washington Asians For Equality immediately filed Referendum 88 with the Secretary of State to block I-1000 from becoming law and thus leave intact the 1998 voter-approved ban on racial preferences. Around $1 million dollars was raised from over 2000 donors; a record number of signatures was gathered, and on August 7, R-88 was certified for the Nov. 5 ballot. Somewhat counter-intuitively, a yes vote on R-88 will allow I-1000 to become law, repealing I-200’s prohibition of racial preference. A no vote on R-88 will prevent I-1000 from becoming law.

Diversity Via Duplicity

By now, the arguments for and against affirmative action are familiar, and on the surface, the debate over I-1000 appears simply to reprise all the old struggles. Even the players seem the same, with the state’s higher education establishment, mainstream press, and cultural elites all favoring a return to racial preferences and a ragtag, outspent army of Asians, mainly Chinese, leading the opposition.

[Why Harvard’s Affirmative Action Victory Should Be Overturned]

That appearance, however, is misleading. There is something fundamentally different this time: the blatant duplicity of the I-1000 campaign. True, all-pro “diversity” arguments are shrouded in misleading rhetorical camouflage — that race is considered only as a “tip,” as “one factor among many,” that engineering classes with enough blacks and Hispanics and not too many Asians have nothing to do with quotas — but the I-1000 advocates have moved beyond  misleading to outright misrepresentation.

In an attempt to fool voters, they have designed I-1000 as a combination Trojan horse/wolf in sheep’s clothing — that is, as a measure that is the opposite of what it appears to be. Its purpose is to remove I-200’s ban on preferential treatment based on race or ethnicity, but its text actually purports to prohibit preferences. In fact, in order to discern any difference from I-200 a diligent reader of the ballot initiative will have to delve deeply into the fine print and definitions buried in its explanatory text. The press has been largely worse than useless in this regard.

I-1000: The Text 

Here is the Ballot Summary that will appear on the Nov. 5 ballot:

It would allow the state to implement affirmative action in public education, employment, and contracting if the action does not use quotas or preferential treatment. It would define affirmative action and preferential treatment. The measure would establish a Governor’s commission on diversity, equity, and inclusion, and require the commission to draft implementing legislation and publish reports. (Emphasis added)

Section 2 states:

The intent of the people in enacting this act is to guarantee every resident of Washington state equal opportunity and access to public education, public employment, and public contracting without discrimination based on their race, sex, color, ethnicity, national origin, age, sexual orientation, [etc.]. This is accomplished by: Restoring affirmative action into state law without the use of quotas or preferential treatment…. (Emphasis added)

The heading of PART II is “PROHIBITION OF DISCRIMINATION AND PREFERENTIAL TREATMENT,” and Section 3 states “(1) The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, national origin [etc.].”

[Will SCOTUS Back Harvard’s Affirmative Action Win?]

Now, buried in the extensive explications and definitions, here’s where the mask comes off: “preferential treatment” is not defined until Section 3, 11 (d):

“Preferential treatment” means the act of using race, sex, color, ethnicity, national origin, age, sexual orientation, the presence of any sensory, mental, or physical disability, and honorably discharged veteran or military status as the sole qualifying factor to select a lesser qualified candidate over a more qualified candidate for a public education, public employment, or public contracting opportunity.

Note well: despite its claim to re-legalize affirmative action but “without the use of quotas of preferential treatment,” the only preferential treatment the new law would prohibit is public policy or practice where race or ethnicity, etc., was the “sole qualifying factor.” In short, if adopted it would actually prohibit no known affirmative action policy anywhere at any time since there are and have been no such policies that rely “solely” on race.

I-1000 is similarly deceptive about quotas, which are nowhere defined. Section 3 (8), however, states that “(8) Nothing in this section prohibits the state from remedying discrimination against, or underrepresentation of, disadvantaged groups as documented in a valid disparity study or proven in a court of law.”

Once a “disparity study” has found “underrepresentation,” the resulting remedy will be indistinguishable from a quota, no matter what it is called. As the editorial board of the Wall Street Journal has pointed out, “Opponents know better how this really works in practice. They also know the law includes a new commission on ‘diversity, equity and inclusion,’ appointed by the Governor, that would enforce compliance by state agencies with these goals. You can guess how those appointees would implement these highly political commands.”

Fake News

The ability of Washington voters to determine what I-1000 would actually do and not do has been hindered, not helped, by much (perhaps most) of the press coverage. Although some of the coverage mentions the measure’s definition of “preferential treatment,” too much of it does not.

[The Garden of College Excellence Is Growing Weeds]

Some examples:

The Spokane Spokesman-Review

“[I-1000] would allow the state to set up laws or policies that fix discrimination against, or underrepresentation of, disadvantaged groups as long as they do not use quotas and do not constitute ‘preferential treatment.’”

The  Columbian (Vancouver)

“The state would not be prohibited from implementing affirmative action laws, regulations, policies or procedures as long as they do not use quotas and do not constitute preferential treatment.”

The Mercer Island Reporter

“While I-1000 reinstates affirmative action in Washington state, it does not allow for preferential treatment.”

South Seattle Emerald

“[Race] cannot be the only criteria [sic] used, nor does it mean admission or hiring will exclusively favor people who may benefit from I-1000.”

Yakima Herald

“Initiative 1000 would allow the state and local governments to consider factors such as race and gender in state hiring, contracting and education, but it would not allow quotas or preferential treatment.”

Since I-1000 would, in fact, allow for what everyone recognizes as preferential treatment, editorial statements such as the above — of which there are many more — are affirmatively misleading. But some go even beyond that and actually provide incorrect statements of what it would prohibit or allow. Thus in calling for a yes vote on Referendum 88, approving I-1000, the Tacoma News Tribune editorialized that universities and other public employers would “be free to consider a person’s race, ethnicity, national origin, age, disability or military experience — as long as it’s not the deciding factor.”

That is simply false. I-1000 prohibits only race being the “sole” factor considered; nothing in it bars race being the deciding factor.

[Intimidation-Produced Silence at Stanford]

No paper that I examined asked any proponent of I-1000 to give an example of any affirmative action policy anywhere that it would prohibit, nor did any paper acknowledge that race could be the determining factor.

The League of Women Voters of Washington was no better than the misleading press. “Initiative 1000,” its statement asserted, “would allow the state to remedy discrimination for certain groups and to implement affirmative action, without the use of quotas or preferential treatment (as defined), in public education, employment, and contracting.” It did not provide the controlling “definition” that gives the lie to its prohibition of preferential treatment.

Rational Duplicity

One can readily understand why the establishment (the Seattle Chamber of Commerce, Microsoft, the University of Washington) and the usual band of woke progressive backers of I-1000 went to such great lengths and depths to disguise the true purpose and effect of that measure. Polls too numerous to cite have shown that, although Americans support “affirmative action” so long as it is undefined, over the years, they have consistently opposed race preferences by substantial majorities, and those poll numbers usually include blacks and Hispanics.

Gallup recently surveyed a large number of its own and other polls on affirmative action, and its conclusion was unequivocal: “The public …  simply doesn’t like the idea of colleges taking race or ethnicity into account in admissions decisions. Admissions decisions, the public is, in essence, saying, should be blind to the race and ethnicity of the applicant.”

More specifically, Gallup quoted a question that it has asked four times between 2003 and 2016:

Which comes closer to your view about evaluating students for admission into a college or university — applicants should be admitted solely on the basis of merit, even if that results in few minority students being admitted (or) an applicant’s racial and ethnic background should be considered to help promote diversity on college campuses, even if that means admitting some minority students who otherwise would not be admitted?

The result was unsurprisingly unequivocal: “Each of the four times Gallup has asked this question over a 13-year time period, between 67% and 70% of Americans chose the ‘solely on merit’ option.”

More recent surveys have found the same thing. According to “Hidden Tribes,” a report from the leftish group More in Common, 85% of Americans oppose considering race in college admissions. In August 2018, WGBH in Boston published a survey that asked whether respondents agreed with Supreme Court decisions holding that “colleges can use race as one factor in deciding which applicants to admit.” 24% agreed; 72% disagreed.

[How Oberlin Played the Race Card and Lost]

Courts have found that “diversity” is a “compelling purpose” that justifies the racial discrimination on which it is based, but as Gail Heriot, a member of the U.S. Commission on Civil Rights, has recently asked, how can a policy be compelling if substantial majorities of the public don’t even think it should be allowed?

Other Reasons to Oppose I-1000 

Aside from the pervasive duplicity of disguising I-1000’s stated purpose and effort, there are other, more conventional reasons to oppose a return to the policy and practice of racial preference,  primary among them that distributing burdens and benefits on the basis of race violates the formerly core principle that individuals should be treated without regard to race, creed, or color.

Heather Mac Donald has just noted other reasons, such as eliminating racial preference in college admissions does not reduce the number of minority students, “it just redistributes them to schools for which they are actually qualified” and more likely to succeed. And doing so “would result in more minority STEM and business graduates rather than fewer, since underrepresented minority students intending to major in STEM would be placed in schools where the teaching is pitched to their level of preparation.”

Another strong reason to leave I-200’s ban on racial preference in place is that current complaints notwithstanding, the sky did not fall after its passage. According to the most recent data from the University of Washington (Fall 2019), blacks are 4% of enrolled students. According to the most recent data from the U.S. Census (2018), blacks are 4.3% of the Washington state population. Indeed, the most underrepresented group at the University of Washington appears to be whites, who are 40.3% of the students but either 78.9% (“white alone”) or 68% (“white alone, not Hispanic or Latino”) of the state’s population.

In a long recent article on the I-1000 controversy, the Chronicle of Higher Education noticed, somewhat uncomfortably it appears, that the minority proportion of first-year undergraduates at the University of Washington fell from 10% to 6.6% immediately after the passage of I-200, but it climbed to 16.1% in 2017.

“Still,” the Chronicle continued, repeating a common argument of I-1000 advocates, “the numbers haven’t kept up with the increasing proportion of minority residents across the state, which has risen from 17.1 percent to 25.8 percent of the total population.”

Closing Arguments

It is difficult to see how the attempt to have Washington universities and other institutions remedy “underrepresentation” by mirroring the racial makeup of the state is distinguishable not only from a quota but also from the “outright racial balancing” and “diversity for its own sake” that has been clearly unconstitutional since Bakke. As even Justice O’Connor held in Grutter, quoting Justice Powell in Bakke, a university can have no legitimate interest “simply ‘to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin.’ That would amount to outright racial balancing, which is patently unconstitutional.”

Finally, it would be good if some enterprising journalist in Washington, assuming there is one, brought to the attention of state officials and voters a very similar controversy concerning the University of Washington 25 years before I-200, a controversy that reached the Supreme Court as Defunis v. Odegard (1974).

The record in that case established that Marco DeFunis, a Sephardic Jew, had been passed over for admission to the University of Washington law school in favor of many far less qualified minorities. After initiating litigation, he was granted provisional admission pending the outcome of his suit. By 1974 when his case reached the Supreme Court, he was about to graduate, and the Court ruled his case was therefore moot.

Everyone involved in the current I=1000 dispute, however, should read the powerful dissent by Justice William O. Douglas, who was not only a native and a lifelong loyal son of Washington but also arguably the most liberal Justice to serve on the Supreme Court in the 20th  century.

Douglas dissented because he thought the case should have been decided on the merits, and today’s Washingtonians would do well to ponder his comments on those merits. “Once race is a starting point, educators and courts are immediately embroiled in competing claims of different racial and ethnic groups,” he wrote. The University of Washington “included Filipinos” in its preferred groups “but excluded Chinese and Japanese; another school may limit its program to blacks, or to blacks and Chicanos.” But “what standard is the Court to apply,” he asked when an unpreferred, rejected applicant “brings suit to require the University of Washington to extend the same privileges to his group?”

“The key to the problem,” Justice Douglas argued, “is the consideration of each application in a racially neutral way…. There is no constitutional right for any race to be preferred. …. A DeFunis who is white is entitled to no advantage by reason of that fact; nor is he subject to any disability, no matter what his race or color.”

Douglas’s masterful dissent is a sad reminder of how far liberals and progressives today have strayed from the path of their past heroes and values. Washingtonians who agree with Douglas and still hold those values should vote NO on Referendum 88 on November 5.

John S. Rosenberg

John S. Rosenberg

John Rosenberg blogs at Discriminations.

4 thoughts on “A Duplicitous Attempt to Rescue Affirmative Action

  1. Superb work on this issue!

    My only quibble is with the idea that courts have “found” that diversity is a compelling state interest. That implies that they have actually evaluated that claim, subjecting it to scrutiny and considering arguments to the contrary. Rather, the rulings on this have merely asserted the proponents’ cliche that “diversity” (as they define it) is a compelling interest.

  2. It’s cute to refer to the local newspaper as Pravda — and rather scary when you realize how few people have any idea what you are talking about — but I wonder what percentage of the population still inherently trusts the media.

    While not always articulate, Joe Sixpack often has a deeper understanding of things than the cultural elites realize.

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