Two decades ago, Washington voters overwhelming adopted an initiative that effectively banned affirmative action programs in the state. That could soon change.
If Initiative 1000 makes it to the state legislature, Washington lawmakers will be asked to once again allow affirmative action policies in public employment, education and contracting.
A predominantly African-American-led coalition that has the support of current and former governors said they have submitted more than 377,000 voter signatures to qualify an initiative to the 2019 Legislature. Initiatives require 259,622 valid voter signatures.
I-1000 seeks to repeal and replace I-200, an initiative that Washington voters passed in 1998. That initiative prohibited government entities from granting preferential treatment on the basis of race, gender, ethnicity or national origin. Preferential treatment was not defined in the initiative. At the time, advocates for I-200 argued that Washington laws "should be colorblind."
I-200 has historically been described as a state ban on affirmative action. However, in a 2017 legal opinion, the Washington Attorney General's office said I-200 "does not categorically prohibit all uses of race- or sex-conscious measures in state contracting."
The Attorney General's opinion also referenced a 2003 Washington Supreme Court decision that found I-200 prohibits "reverse discrimination where race or gender is used by government to select a less qualified applicant over a more qualified applicant."
Washington was the second state after California to adopt a ban on race or gender-based preferential treatment. Since then, six other states have followed suit.
On the day the I-1000 campaign turned in its signatures, the official sponsor of the initiative, Nat Jackson, led a parade of supporters into the foyer of the Secretary of State’s Office in Olympia. They carried bundles of signed petitions sheets.
“What a historic moment,” Jackson said as he stacked the petitions in a pile on the counter. Soon, dozens of mostly African-American supporters of the initiative had packed the foyer. For the next hour, speaker after speaker decried the legacy of I-200 and extolled the potential for I-1000 to create educational and economic opportunities for underrepresented groups.
Among those called to speak was Roy Ruffino who runs Citizen Solutions, the signature-gathering firm that contracted with the I-1000 campaign. In an ironic twist, Citizen Solutions is closely associated with professional initiative promoter Tim Eyman, one of the sponsors of I-200 in 1998. “We usually do more conservative issues,” Ruffino, who is white, said to laughter. He also alluded to his company’s relationship with Eyman. “It doesn’t matter. I wanted to get this on the ballot for you guys.”
Also at the news conference was Saniah Simpson-Patu, 20, the president of the Black Student Union at St. Martin’s University in Lacey. Simpson-Patu said she only recently learned about affirmative action, but now she’s supporting the passage of I-1000.
“It represents equality and a chance for equal opportunity,” Simpson-Patu said. “Without affirmative action we can’t have that.”
The coalition for repeal says the 1998 initiative has proven costly to women and minority-owned businesses. They point to an analysis by the state's Office of Minority and Women's Business Enterprises (OMWBE) that shows a sharp decline since 1998 in the percentage of state dollars spent with OMWBE-certified firms, from a high of 13 percent in 1998 to about 3 percent in 2017. The number of certified firms in Washington decreased by nearly half during that same period. "If the annual percentage had continued to average 10 percent, small minority- and women-owned businesses would have made $3.5 billion dollars more," the analysis concluded.
Under I-1000, the state could use affirmative action as a tool to increase diversity. However, the measure would prohibit the use of quotas. It would also prohibit the use of race or gender "as the sole qualifying factor to select a lesser qualified candidate over a more qualified candidate."
Drafters of the initiative said they designed the measure to comply with the U.S. Supreme Court's "limited" definition of allowable affirmative action. In two cases involving university admissions, the court has said race can be one of the factors used to decide admission, but not the only factor. And quotas are not permissible.
Besides race and gender, I-1000 would allow affirmative action policies to promote the advancement of people based on sexual orientation, disability and veteran status. The measure, which still needs to be certified by the Secretary of State's office, would also create a new governor's commission on diversity, equity and inclusion.
Gov. Jay Inslee, a Democrat, has endorsed I-1000 and encouraged lawmakers to pass it during the 2019 session. Former Democratic Govs. Chris Gregoire and Gary Locke, as well as former Republican Gov. Dan Evans also back the measure.
"This is a wonderfully designed initiative," Evans said. "It doesn't have set-asides, it doesn't have quotas, but it does give people a boost when they need it."
But not everyone agrees. John Carlson, a KVI radio talk show host and former Republican gubernatorial candidate, chaired the I-200 campaign in 1998.
"If I-200 is replaced by this initiative, Initiative 1000, then it will once again be legal to use different rules for applicants of different races," Carlson said.
Opposition is also coming from the group Washington Asians for Equality. In recent years, some Asian-American plaintiffs have challenged affirmative action policies on the grounds that they are a form of discrimination against highly qualified applicants. The most high-profile of those cases involves an ongoing lawsuit challenging admission policies at Harvard University.
"If I-1000 is passed by the Legislature against people's will, the number of Asian-American students at UW will definitely tank below current level," said a recent article on the group's website. "Asian-American families will likely be the ones most hurt."
Even some who want to repeal I-200 are wary of the initiative. State Rep. Sharon Tomiko Santos has tried to repeal I-200 numerous times over the years, but is concerned about replacing the anti-affirmative action statute with a new law.
"The initiative appears to try and amend a fundamentally flawed policy," said Santos. “I don’t think I-200 can be fixed.” Santos said she plans to introduce another I-200 repeal bill in the 2019 Legislature.
But Jesse Wineberry, who co-chairs the I-1000 campaign, says that it's important to replace I-200. The current law, though flawed, he says, includes anti-discrimination language and tribal protections. "A repeal at this point removes several good things," Wineberry said.
Last year, the Washington Senate took a significant step toward getting rid of the state's 1998 anti-affirmative action law. An I-200 repeal bill passed out of the State Government, Tribal Relations and Elections Committee. The chair of that committee, Democrat Sam Hunt, told supporters of I-1000 that while affirmative action is a controversial issue, he's optimistic that I-1000 will pass the Democratically-controlled Legislature.
"In the Senate, we're going to hopefully push this out," he said. "And hopefully the House will agree with us and we'll make this a reality before we adjourn in April."
In the weeks ahead, the I-1000 campaign will work to convince lawmakers to pass the measure. If lawmakers approve I-1000 it will become law. If they don't, it will go on the November ballot. In the event lawmakers pass a separate I-200 repeal bill, both that measure and I-1000 would appear together on the November ballot.
In any case, the campaign faces a steep fundraising challenge. Campaign finance records show I-1000 has accumulated more than $478,000 in debt and has only raised $122,000.