AS THE ANTI-AFFIRMATIVE-ACTION measure Initiative 200 heads for a statewide November vote, it's clear that wording on the ballot and in campaign materials will be key. Last year, in Houston, a bill that would have eliminated "affirmative action" failed at the polls. But an essentially identical measure to end "preferential treatment" passed in California the year before.
The I-200 campaign is modeled on the California effort (and funded by the same California activist group). It would outlaw "preferential treatment" on the basis of race or gender "in the operation of public employment, public education, or public contracting." Opponents of the measure are trying to combat what they see as a disingenuous verbal advantage. The Seattle Times, for instance, appears to have mandated a boilerplate description of the initiative as one that "would effectively ban affirmative action" in the public sector.
I-200 supporters insist it will do no such thing. "The Washington Human Rights Commission has listed four things as constituting affirmative action, and only one of those is preferences," says Rep. Scott Smith, the Pierce County Republican who co-chairs the I-200 campaign. (The commission also lists aggressive recruitment, revising job requirements, and expanding the definition of merit.)
The primary targets of I-200 are state and local programs giving minorities and women a leg up on college admissions and government jobs and contracts. Yet the opponents of I-200, perhaps recognizing that public support for these programs is only lukewarm, have been trying to direct voters' attention to the affirmative action efforts that seem less "preferential."
Witness the official No! 200 campaign literature: "What kind of affirmative action programs would Initiative 200 eliminate?" it asks. "Outreach, mentoring, and tutoring programs targeting schools with large numbers of minority students... training, recruiting and scholarship programs for law enforcement workers, nurses, and other health professionals to work in underserved communities... outreach and empowerment programs for girls in school to compete in math and science programs...."
As Kollin Min, an attorney on the executive board of the No! 200 campaign, observes, "How people think this initiative will affect outreach and recruitment will largely determine the vote. Very few people are going to say we should not go out to Indian reservations and recruit for the University of Washington."
Despite their long list of threatened programs, however, No! 200 campaign officials were unable to tell me where, or even whether, the above-mentioned programs exist in Washington state. And the fate of those that do exist may not be as preordained as the I-200 opponents make out. It's pretty clear, for example, that Initiative 200 would not prohibit the UW from visiting Indian reservations.
"I don't think that recruitment is going to be changed in any way [under I-200]," Rep. Smith insists. He says that if public agencies want to recruit in minority neighborhoods, they are welcome to—"so long as when they actually make the hiring decision, they do it without regard to race."
In fact, Smith contends that outreach efforts might be "enhanced" in an I-200 world. "I think you will see more targeted recruitment than we have today, more of the universities going into the black schools and letting them know at an early age, seventh or eighth grade, that in order to get in you need to be competitive, so start taking the math and science classes, and we'll come back here next year and help you again. That's good affirmative action." (Indeed, UW admissions director Tim Washburn has said that more active recruitment is precisely how the school would respond to passage of I-200.)
When I asked officials at the Seattle Public Schools for any programs that specifically target girls or minority children, they came up with only one: MESA, which aims to introduce girls and minority students to careers in math, engineering, and science. The program began in Washington in 1984 and now has about 3,400 kids, grades 7 through 12, participating in 65 schools. They take special elective science classes, make field trips to the Pacific Science Center, and hear speakers from companies like Boeing and Microsoft. Run, in the Seattle area, out of the University of Washington, the program received $790,000 in state money last year.
Patricia MacGowan, who oversees the program at the UW, says she doesn't know how much MESA would be threatened by I-200. She says California's MESA program has begun targeting schools based not on their racial composition but on how few of their students are eligible to enter the University of California system—which ends up being the same schools. The program may also start admitting participants based on economic "disadvantage" rather than race.
That's exactly what Rep. Smith would like to see. "I'm not saying, do away with the math tutor program," he argues. "I'm saying, open it up to everyone who might be hurting in math." But that, of course, would undermine the purpose of MESA, whose goal is to bring more women and minorities into scientific professions.
I-200 OPPONENTS' FEARS are based in part on the aggressive actions of California Gov. Pete Wilson, who has released a hit list of more than 30 state statutes that he says provide an illegal preference based on race or gender. Those statutes include, for instance, a law establishing a summer science program for minorities and girls.
But the situation in California is different from what is happening up here, notes Jim Pharris of the Washington attorney general's office, who is analyzing Initiative 200. During California's Proposition 209 campaign, "You had both the governor and the attorney general loudly saying they were opponents of affirmative action and loudly saying that [Proposition 209] was intended to end all affirmative action programs. You don't have that here. I don't think Scott Smith is saying that."
The stated intentions of the initiative backers do matter, says Pharris, insofar as they determine the general public understanding of what the bill would do. The meaning of Initiative 200, if it passes, will ultimately be decided in state Supreme Court, as lawsuits force the justices to interpret the measure. At that point, "obviously they look first at the language [of the bill]," says Pharris. But if the language is not clear, "The judges will look at the voters pamphlet—even, to some extent, press reports of the debate—and try to figure out what was the understanding among voters when they passed this, how far they intended this to go."
The problem is that Rep. Smith, for one, tends to talk out of both sides of his mouth. For example, while he says he has no opposition to "targeted recruitment" he also insists that public agencies and universities "should be recruiting everybody, not just blacks, Asians, American Indians."
Another important difference in California is that Proposition 209 is an amendment to the state's constitution and so it automatically trumps any laws on the books. But voters in Washington aren't allowed to amend the constitution by initiative. I-200 would be just another state law. So, contrary to the No! 200 rhetoric, the initiative would not immediately "eliminate" MESA or other, similar programs—though it may open them up to legal challenge. Their fate would depend on how aggressively affirmative-action foes file lawsuits.
Even without I-200, MESA's exclusive focus on girls and minorities could probably be challenged today on constitutional grounds, if somebody felt so inclined. But apparently no one has. "I don't know of any example of someone being turned away," says Patricia MacGowan. The public seems to find targeted programs such as MESA acceptable right now.
The worry among I-200 opponents is that the initiative would change that public perception and give conservative activists like Smith the legal clout to prevail in court. Under the guise of eliminating "preferences," I-200 could open the way for an attack on other affirmative action programs that may enjoy wider public support.