Washington State Voters Should Take Notice of This

A new, misleading voter initiative seeks to repeal I-200, which banned state-sponsored discrimination or preferential treatment based on race, sex, etc.

|The Volokh Conspiracy |

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.

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  1. Does affirmative action classify on the basis of race?

    If so, how is it better than South African apartheid?

    1. When will white people finally be free of the yoke of apartheid in the United States??????

      1. NToJ, this is what a growing number on this blog actually believe.

        Fear of a black nation indeed.

        1. Black nation? No, they abort themselves at a rate keeping their population % the same since the 1970s. The reconquista continues apace though. So maybe “brown nation” or something would work for *some* commentators.

          Still, it is not outside the mainstream to want a color blind society.

          1. Do you mean a society that doesn’t elect a president who slurs “Mexican” judges from Indiana or dreams of Norwegian (rather than brown) immigrants?

            Or a society in which one of the political parties questioned the legitimate birth certificate of a black man but doesn’t care about the tax returns of a white bigot?

            A society in which officials of one party do not circulate e-mails featuring a Harvard-educated black public official and his family as watermelon-loving chimpanzees, bone-through-the-nose savages, or fried chicken-chasing clowns?

            That society will be here soon enough. The American electorate improves every day, generating an existential threat to Republicans, conservatives, and faux libertarians.

          2. “No, they abort themselves at a rate keeping their population %…”

            Since the black fertility rate in the US is higher than the white fertility rate, I’m not sure abortion is the culprit.

            1. That’s the explanation I have read several places, but I’m not a demographer. What else might it be?

              1. Infant and child mortality rates. The black women who reach fertility age have more children than their white counterparts. But a lower percentage of black women reach fertility age because they are more likely to die young. The black infant mortality rate is more than twice as high as the white infant mortality rate.

                1. But the infant mortality rate is so small, even if it is double that of whites, meanwhile a third of all abortions are black babies.

      2. Us white boys will be just fine.

        It’s part of our white nationalist plot to give slots in premium universities to blacks and Hispanics with substandard test scores to keep out our real competition: Asians with hyper-competitive test scores.

        Best part of it is the Asians blame the other minorities.

        1. Okay, that’s funny. Funnier too because if it was true it would actually work out exactly that way too.

    2. Different purpose and operation, different scope, different required use of force, different level of policymaker, different history.

      1. So, it’s OK to discriminate, even partially, based on the race of a person, in your opinion?

        1. Anyone who supports affirmative action believes this. Surely this isn’t a big revelation to you? Did you think supporters of affirmative action were simply mistaken about the fact that it takes into account race?

          1. And you don’t see a problem with discriminating for or against people on the basis of their race, as long as it’s done for the “right” reasons?

            1. If the playing field isn’t color-blind, how is it the moral stand to act like it is?

              1. Whites were the minority in South Africa during apartheid.

                As such, apartheid was pro-minority, just like affirmative action.

              2. Affirmative action does not make a playing field color-blind.

            2. I do see a problem with racial discrimination and I think affirmative action is a bad idea, because it is detrimental to the minorities who are the intended beneficiaries. But I don’t have a major objection to white people agreeing to give minorities requested racial spoils. It’s not government-mandated discrimination if it’s voluntary, and it isn’t like non-whites are imposing this system on whites. Washington is about 69% white.

              1. But I don’t have a major objection to white people agreeing to give minorities requested racial spoils. It’s not government-mandated discrimination if it’s voluntary, and it isn’t like non-whites are imposing this system on whites. Washington is about 69% white.

                It’s not voluntary. “Whites” (or “blacks,” “Asians,” or any other group, for that matter) are not unitary classes.

                If, e.g., a white person admitted to college wants to give his admissions slot to a black person out of a sense of social justice, that would be one thing. Or a white contractor turning over the government contract he won to a black contractor. But affirmative action involves white people who have already graduated from college giving a white person’s admissions slot — or, even more likely, an Asian person’s slot — to a black person. Or a white politician giving a contract that would otherwise have gone to a white person to a black person.

      2. Please elaborate further.

        what makes affirmative action right and apartheid wrong, considering that both policies favored minorities?

    3. Plus factors and preferences are the top of the slippery slope. Apartheid is the bottom.

      With skill, they can keep their footing near the top of the slope without sliding down, but why fool around with slippery slopes at all?

    4. In the purposes and consequences of the classification.

    5. Does the Republican Party suppress voters on the basis of race?

      If so, why is a Republican not a loathsome bigot?

      This might explain the culture war’s result.

      1. Not that you are anything other than a knee-jerk sloganeer, but actually the Republican party’s interest is votes not race. If blacks voted Republican (as they once overwhelmingly did), the suppression would go the other way (as it once did, much more than today, where “suppression” consists of requiring an i.d. to vote as you would need to cash a $20 check).

        1. I heaving discount explanations of race-targeting behavior from the birther side of the aisle.

          I blame my education.

          1. I heaving discount explanations of race-targeting behavior from the birther side of the aisle.

            I blame my education.

            Based on this gibberish, it stopped in 3rd grade.

      2. Does the Democratic Party suppress gun ownership on the basis of race.

        For the past two centuries, the answer is a resounding yes.

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  2. Ackchyually, if you want to pass any law, it’s far better to disguise it as something that sounds nice and focus on the parts people might like, than to present an honest view of the costs and benefits. Dismiss any detractors as extreme extremists from The Wrong Party who probably want babies to die/grandma to starve. Then, just count on the fact that voters very rarely pay attention to the minute details of laws after they pass.

    1. Totally off topic, but your username is great.

      1. Thanks!
        I believe every child deserves gainful employment, especially if it’s in my totally safe monocle polishing factory.

  3. This is a dishonest tactic to repeal what was a dishonest initiative.

    If you want to bar state affirmative action programs, just draft language that does it. But the California statute was called a “civil rights initiative” and purported to bar “discrimination” which was already barred.

    Having decided to be dishonest in getting these things passed, opponents of affirmative action can’t complain now when dishonest means are used to repeal them.

    1. I am admittedly failing to see how the initial 1998 passage was dishonesty, as the wording and intent is clear enough, at least from this blog post. The issue was/is that the statute was ignored, again, at least according to the blog post.

    2. purported to bar “discrimination” which was already barred.

      One would think so ? but liberals got around that by pretending that affirmative action wasn’t discrimination.

    3. “But the California statute was called a “civil rights initiative”

      This is about Washington. And it is a civil rights initiative.

      “If you want to bar state affirmative action programs, just draft language that does it.”

      You mean by asking on the ballot, “Shall government be prohibited from discriminating or granting preferential treatment based on race, sex, color, ethnicity or national origin in public employment, education, and contracting?” The granting preferential treatment seems to be a pretty clear reference to affirmative action programs. I have a hard time finding anything dishonest about the presentation of the original initiative.

      1. Not to mention that it did not ban some forms of affirmative action like say advertising jobs in community newspapers, or radio stations with large.black audiences.

        Not all forms of affirmative action are discriminatory, but giving extra points for race or ethnicity is discriminatory.

  4. According to the Left as long as you hate on Whitey and discriminate against them it get their STAMP OF APPROVAL!

  5. I’ve never fully understood this “sole factor” business. If changing one characteristic of the chosen job applicant would cause the employer to choose a different applicant, how is that not the sole factor on which the decision was made? And if it wouldn’t change the decision then it didn’t really matter.

    1. Because changing a different factor could also result in a different applicant being chosen. Suppose you advertise a job requiring a college degree and announce that you will give preference to minority candidates. If you get three applicants, a white guy with a degree, a minority with a degree, and a minority without a degree and hire the minority with a degree, you haven’t hired someone just because they were a minority so it wasn’t the sole factor.

      Sometimes in contracting, proposals are given numerical scores as part of the evaluation, with the highest score being awarded the contract. If a DBE firms is given a numerical bump they can’t be awarded the contract unless the rest of their scores were high enough, so again the bump isn’t the sole factor.

      1. I don’t follow your example.

        Suppose the third guy – the one without a degree – hadn’t applied, and you hired the black guy because of the preference. Why wasn’t race the sole factor? It can’t depend on getting some number of obviously unqualified applicants.

        If a DBE firms is given a numerical bump they can’t be awarded the contract unless the rest of their scores were high enough, so again the bump isn’t the sole factor.

        I don’t know what a DBE firm is, but assuming its a minority company, I don’t understand this. Company A gets 90 points. Company B, a DBE, gets 89, plus a two-point bump, bringing it to 91 and it gets the contract. How was minority status not the “sole factor?”

        I think my problem is that the notion of a “sole factor” is not well defined. Are we talking about race, say, trumping all else – what is called lexicographic preference – so that, in your example, a black applicant without a degree would be hired ahead of any white applicant at all?

        1. If you wouldn’t have hired the second guy if he didn’t have a college degree, his minority status wasn’t the sole factor. His degree was a factor in his hiring.

          DBE is a Disadvantaged Business Entity, which can include minority and woman owned companies and sometimes just small businesses. If the DBE had scored 87 on the rest of its proposal, the 2 point bump would have left it with 89 points and the contract would have gone to A. The 89 other points are part of the reason B got the contract, even if it was the DBE points that put it over the top.

          I think the distinction is between the sole factor and the determinative factor. Just because a factor is determinative doesn’t mean it is the sole factor.

          1. His degree was a factor in his hiring.

            Well, OK, but then so was, probably, his ability to speak English, or maybe to do arithmetic.

            Does meeting some race-neutral requirements make race only the determinative factor as opposed to the sole factor?

            That distinction, if it is one, doesn’t seem very meaningful to me. I can see it if we have a case where two applicants, or companies, have identical qualifications, but that’s not usually the case.

            What about my example of the contract award?

            1. I think you’ve somehow completely missed the point, bernard: the point in the change of language is what you’ve identified but haven’t realized: no one ever has a sole qualification for hiring someone, so adding that language eliminates the term it’s associated with.

  6. The way to end racial discrimination is to stop discriminating based on race. Full stop.
    The way to encourage racial discrimination is to institute policies that discriminate based on race. Even as a “partial” factor.

    Democrats seek to encourage racial discrimination here and racial division by instituting new policies that discriminate based on race. Even “partially”. Among a host of other evils, once race becomes a factor, magically you’ll see people who identified as white all their life suddenly putting down “Native American” on their employment documents, for the perceived benefit.

    1. What is your view of Republican conduct and policies on race, you stale-thinking bigot?

      1. You see, the phrase “The way to end racial discrimination is to stop discriminating based on race.” is such an obvious dog-whistle for racism. Who besides a white supremacist would even say such a horrible thing?

        1. It’s a signal of blindness to the very concept of institutional racism.

          1. So…deliberately discriminate based on race in hopes it all evens out?

            1. Anyway, let’s suppose that there are these evil cishetero white men who sit around their exclusive country clubs twirling their moustaches and reaping the benefits of institutional racism…do you really think these are the same people who get discriminated against with “affirmative action”?

              The Asian immigrant, the working-class white guy…are these all members of the white-privilege institutional racism country club?

              1. I forgot to mention the cigars. The country club requires cigars.

                1. And if these institutional racists are so powerful, what’s to stop them from gaming the affirmative-action system itself?

                  I mean, let’s say, hypothetically speaking, that someone who is white and privileged claims some kind of protected-class status by simply checking the protected-status box on official forms?

                  Will we need a bureaucracy to sort out the true protected-class members from the fake ones? What’s to stop the institutional racists from taking over this bureaucracy and allowing privileged whites to game the system with vague “family traditions” of protected-class ancestry?

                  1. Eddy, you’re imputing an intentionality and malice to those who benefit from the system that they don’t have. There is no secret conspiracy or agenda at work; just old boy’s clubs and unconscious biases and unexamined conventional wisdoms.

                    1. Eddy, you’re imputing an intentionality and malice to those who benefit from the system that they don’t have. There is no secret conspiracy or agenda at work; just old boy’s clubs and unconscious biases and unexamined conventional wisdoms.

                      But there doesn’t have to be malice or intent for things to work out that way. Natural distributions will just tend to cause it to be that way.

                      Take a prestigious school with 100 slots. Say, just for argument, that traditionally 75 slots went to whites; 25 to minorities. And of the 75 “white” slots, 50 went to kids of wealthy parents, alumni, and others who already have a leg up. 25 went to kids of blue-collar workers.

                      School now allocates additional slots for minorities, so it’s a 50/50 split. It isn’t the advantaged giving up their spots; they’re safely in. It’s the 25 blue-collar workers on the margin. And it’s not the minorities most victimized by racism taking those additional spots. It’s minorities who, despite prior racism, also have wealth/family advantages.

                      I recognize that it’s not as simple as this. I’m just illustrating the point. Because the blue-collar white kids are more likely to be on the margins of getting cut, and the wealthy minorities are more likely to be on the margin trying to get in, these programs are going to favor the wealthy at the expense of the poor. No malice; just natural distribution. So you can understand why poor, blue-collar families object to these programs.

                    2. You’ve successfully argued that race shouldn’t be the only background factor in admissions, not that it shouldn’t be a factor.

                    3. So how is intentional racial discrimination the solution?

                  2. “And if these institutional racists are so powerful, what’s to stop them from gaming the affirmative-action system itself?”

                    They already do:

                    “For instance, in Illinois you get favorable treatment as a potential government contractor if you “comply” with all sorts of insane progressive policy strictures. “Woman or minority owned business” or “small business owner”, as an example. Even a small advantage in the contracting process for (for example) the State of Illinois puts you over the edge. Competitors without (for instance) the Woman or Minority Owned Business certification would have to underbid a certified applicant by 10-15% (it’s all a complex points system) to just break even. It got so bad so quickly that the regs were revised to permit a de minimis ownership (1%). Of course, several regulatory lawyers quickly made a business out of offering minority or women equity “owners” who would take 1% for a fee (just absorb how backwards it is to be paying a fee to have a 1% equity partner) with very restrictive shareholder agreements. Then it became obvious that you’d get points for the “women” and “minority” categories BOTH if you had a black woman as a proxy 1% “owner.” There was one woman who was a 1% owner of 320 firms.”

              2. You don’t need to be evil to reap the benefits of institutional racism. In fact, you can’t help it.

                I see affirmative action as doing a number of things, of which only one is addressing institutional problems.
                1) Creating more diverse spaces during people’s formative years makes America a bit less culturally balkanized
                2) The meritocracy ain’t. So trying to look individuals of merit that would be overlooked by traditional metrics due to said institutional distortion
                3) Actively addressing the crappy playing field by creating opportunities put people into managerial positions who have first-hand experience with the issues in the system.

                1. The whole problem with your points (aside from it being discrimination based on race), is that most hierarchies are based on competence (even bureaucratic competence). Whites as the largest portion of the populace have lots of competent people, just statistically. It doesn’t make it institutional racism when a minority, statistically, doesn’t have a representation equal to their % of the population, because there are lots of hierarchies and people go into different fields via self-selection. It’s not an issue when the NBA is mostly black, but when most astronomers are white, suddenly it’s a problem of individuals being overlooked?

                  1. I’m not arguing that disparate impact is slam-dunk evidence of discrimination. It’s not, but we also can explicitly see how the system works, from old boys clubs to masculine traits being selected for regardless of their actual utility to unconscious bias studies.

                    People who assume race is a deterministic component of merit can’t really be argued with.

                    You are assuming the way we measure and ascertain competence does what it says it’s doing.
                    You also assume that that focusing on near-term abilities is the best metric to use, and that eliding potential is fine to do.
                    You are further ignoring any benefits to output of diversity in a workspace, of which race and gender are components.

                    1. I understand the problem of institutional discrimination, if I may make an analogy, that seeds scattered in fertile ground will grow more successfully than seeds scattered in a desert. But the problem with knowing such a thing exists, and to an extent it does but we have no idea the magnitude that it does exist, you’re left with the question of asking “now what”? First, you can’t ascribe blame. If a person benefits from “white privilege” what % of their success, or lack thereof, can be ascribed to it? Such a calculation is impossible to make. Second, attempts to fix the problem of institutional discrimination exacerbate the situation by creating MORE discrimination.

                      On another note, I don’t take it as a given that “diversity is our strength”, nor should anyone else. I’d like to see some evidence of it, when historically, greater diversity causes more strife. What made America an exception was that demographic diversity didn’t matter as much because it was rich vs poor/labor vs capital/etc. as one of the central conflicts. I miss old school libs like Bernie Sanders that cared about helping the poor of all races, not helping blacks at the expense of whites.

                    2. I agree that blaming whites for having privileged is as bad a misunderstanding as denying privilege doesn’t exist. Doesn’t mean we shouldn’t address the issue, even if the price is that whites are sad about no longer being privileged.

                      Diversity is our strength is an empty shibboleth often enough, but there’s a reason why multidisciplinary is a buzz-word – studies are pretty universally aligned that diversity means better problem-solving outcomes in business, academia, you name it.
                      Now, diversity is certainly a lot more than race or gender, but it’s also at least partially that.

                      Add in that oftentimes the things groups are working on will serve a diverse group, having a diverse team is a more explicit benefit.

                    3. Again, whites aren’t privileged because they are white, they show up in greater numbers in towards the hierarchies because there are more of them and they are competent. They also show up quite a bit at the bottom because there are more of them. Competence in shouldn’t be punished in a healthy society, in fact, it should be rewarded as it makes society better for everyone, even the incompetent. Yes, hierarchies can become dysfunctional at times and need reforms, but they have always, and will always, exists because societies require them. I can’t help but make an emotional argument and say how sad it is that you want to punish white people (because that is, when you get down to brass tacks, what you’re doing) for something that you can’t quantify and for which there is no ascertainable wrongdoing for anyone involved. It’s like punishing those who like baseball or the discrepancies in player salaries. It’s not social justice, it’s social injustice.

                      Multidisciplinary =/= diversity

                      Your examples of where diversity has been a benefit are very narrow cases of single issues where diverse perspectives (which is not the same thing as demographic diversity) made a difference, and it is not entirely clear that lack of diversity in those cases were a problem, but rather differing priorities.

                    4. I still haven’t seen a good response to my point:

                      “Will we need a bureaucracy to sort out the true protected-class members from the fake ones? What’s to stop the institutional racists from taking over this bureaucracy and allowing privileged whites to game the system with vague “family traditions” of protected-class ancestry?”

                    5. I like the stance progs take when they want to call stuff they don’t like racist but insist it’s nothing personal.

  7. How do liberals start with the premises:

    1. Whiteness is an omnipresent force which creates structural discrimination against minorities, including government structures.

    2. Affirmative action is necessary to combat/end whiteness

    3. Affirmative action requires discrimination for minorities and against white people

    And conclude that the state should be allowed to discriminate, because it will implement affirmative action?

    If the Whiteness claim is real, allowing governments to discriminate inevitably leads to discrimination against minorities, because you can’t dodge its structural omnipresent nature. If the whiteness claim isn’t real, then affirmative action isn’t necessary.

    This logic doesn’t add up at all.

    1. How can a car ever go up a hill, when there’s an omnipresent force pulling it downwards? If the gravity claim is real, allowing wheels to move inevitably leads to rolling downhill.

      1. Being disingenuous is not endearing.

        There’s a critical difference between your strawman and my analysis of the argument, and that’s gravity is *separate from* the car, whereas Whiteness is intrinsic to the government. The car driver’s goals are independent of gravity. But the whiteness assumption has the government specifically perpetrating whiteness.

        If we must stick with your car analogy, it would also have to include the claim ‘and the driver wants to end up at the bottom of the hill’. At which point, why would expect them to drive uphill?

  8. The ideal would be that society reaches the point where decisionmaking does not include any consideration of discriminatory protected categories, at least as much as is humanly possible. Few, if any, private entities are authorized under law to operate affirmative actions policies; they are simply prohibited from discriminating on such protected characteristics. Hence, the development of the term “diversity.”

    A government will always be in “business”; it doesn’t have to turn a profit or run efficiently to exist. As such, it does not face the pressure actual businesses face to simply open their doors every day. Both because it can as a practical matter, and should as a principled matter, government should be leading the effort to be nondiscriminatory, not digging in its heals and forever bringing up the rear. The government should be eradicating discrimination from decisionmaking, not baking it into the process.

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