The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In 1998, Washington voters adopted Initiative 200 (or "I-200") by a wide margin (58%-42%). Its operative clause states, "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."
Like California's Proposition 209 on which it was based, I-200 is sometimes honored only its breach. But it has been reasonably effective in the area of public contracting in particular.
Now comes the effort to repeal it. Last week the Washington Secretary of State has certified for the ballot an initiative ("Initiative 1000" or "I-1000") that, if passed, will bring back race- and sex-preferences in public education, public employment, and public contracting. But it does so in a sneaky way. It retains the operative clause. It even expands it:
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, age, sexual orientation, the presence of any sensory, mental, or physical disability, or honorably discharged veteran or military status in the operation of public employment, public education, or public contracting.
But it then defines "preferential treatment" this way:
"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.
Nobody has ever used race, sex, color, ethnicity or national origin, as "the sole qualifying factor" for anything. The point of I-200 is that the listed factors shouldn't be a factor at all. It leaves the state to determine what qualities it wishes to seek, stating only that race, sex, color, ethnicity and national origin shouldn't be among them. A state that wishes to give preferential treatment to small businesses or start-ups or to low-income or first-generation university applicants can certainly do so.
Another section of the new proposal makes it clear that the original I-200 will be eviscerated:
Nothing in this section prohibits the state from implementing affirmative action laws, regulations, policies, or procedures such as participation goals or outreach efforts that do not utilize quotas and that do not constitute preferential treatment as defined in this section.
If somebody in Washington State wants to give Washington voters the opportunity to repeal I-200, they should be clear and upfront about it.